McCarthy and Stone Retirement Lifestyles Ltd & Ors, R (on the application of) v Greater London Authority

This is a challenge to Supplementary Planning Guidance, SPG, issued by the Mayor of London, after consultation. The SPG (Homes for Londoners: Affordable Housing and Viability Supplementary Guidance 2017) is related to policies in the London Plan, part of the statutory development plan for London. It concerns how affordable housing developments or contributions in lieu should be negotiated on the grant of planning permission for housing developments.

The four Claimants are developers of specialist housing for the elderly, which each say that the new SPG has had a very damaging impact on their ability to acquire and develop sites. As is common with new planning policies or guidance, its effects begin when the draft is published, which happened after the election of the Mayor in 2016. He was concerned that the policies in the London Plan were not being used as effectively as they could or should be to produce affordable housing.

The Claimants contend that the SPG is unlawful because (1) it constitutes policy which should only be in the London Plan, which is currently being revised; the SPG was also inconsistent with that Plan; (2) the SPG is a “plan or programme” which required a Strategic Environmental Assessment, SEA, under the Environmental Assessment of Plans and Programmes Regulations, SI 2004 No.1633 but which had not been undertaken; and (3) it was produced without due regard being had to the constituent parts of the public sector equality duty, PSED, in s149 Equality Act 2010.

The Mayor of London contends that (1) the SPG is no more than guidance as it describes itself to be, and does not contradict any policies in the London Plan; (2) the SPG is not a “plan or programme” nor likely to have any significant effects on the environment, and (3) the PSED was fully complied with.

Permission was refused on all grounds by Supperstone J, and the matter comes before me as a rolled-up hearing, following an order by Holgate J after a short hearing. The Mayor contends that permission or relief should be refused because the proceedings were not commenced promptly after grounds arose, though commenced just within the three-month limit.

Two aspects are relevant: plan-making and development control. The former is relevant to the powers which the Claimants say should have been exercised, and the latter to the way in which the Mayor is able to make Guidance effective in substance in the development control process, although it is no more than a material consideration, if lawful.

First, the statutory planning powers. S334(1) Greater London Authority Act 1999 requires the Mayor to produce a “spatial development strategy”; this is known as the London Plan. It must, by subsection (2), “include a statement formulating the Mayor’s strategy for spatial development in greater London.” By subsection (3), his strategy “includes his general policies in respect of development and use of land in Greater London.” This is however limited by subsection (5): the spatial development strategy “must deal only with matters which are of strategic importance to Greater London.” The statutory process for its production, in ss335-338, covers the publication of a consultation draft, amendment following consultation, the examination in public of the amended draft by an Inspector appointed by the Secretary of State for Housing Communities and Local Government, consideration of the Inspector’s report and any directions given by the Secretary of State in relation to any of its policies which are inconsistent with national policies. The current London Plan was published, under s337, as the final phase of the process in March 2016, before the Mayoral election of that year.

The London Plan must be kept under review, as provided for by ss339-340. A revised draft London Plan has been published for consultation following such a review, and the replies are being considered. The next stage is that it will be sent to the Secretary of State for examination in public, with whatever amendments the Mayor makes in response to that consultation process; it will follow the same process in effect as the current Plan.

There is no statutory power which expressly deals with SPG issued by the Mayor of London or Greater London Authority, GLA. It was not at issue but that the GLA or Mayor could produce SPG. The GLA has the power in s30 “to do anything which it considers will further any one or more of its principal purposes.” This was the power principally put forward; its exercise requires consultation with various bodies and persons; s32. S34 contains a general power to do that which “is calculated to facilitate, or is conducive or incidental, to the exercise of any functions of the Authority….”

The statutory provisions are different for local planning authorities in England, including London. They are empowered by s19 Planning and Compulsory Purchase Act 2004 to issue local development documents which are not development plan documents. These include Supplementary Planning Documents, SPD; the procedure, laid down in the Town and Country Planning (Local Development) (England) Regulations 2004 for issuing them includes consultation but not examination in public; SPD must also be in conformity with development plan documents. The Secretary of State, in the National Planning Policy Framework, at [153], said that such SPDs “should be used where they can help applicants to make successful applications…and should not be used to add unnecessarily to the financial burdens on development.” The Secretary of State has himself issued Planning Policy Guidance, supplementing his NPPF, saying that SPDs “should build upon and provide more detailed advice or guidance on the policies in the Local Plan”. This does not apply in terms to SPG issued by the GLA.

Second, development control powers. Development control is a principal mechanism whereby SPG is given effect, although the Borough Councils are the development control authorities for applications for planning permission for housing developments, at least in the first place. Under the Town and Country Planning (Mayor of London) Order SI 2008 No. 580, articles 4 and 5 require a local planning authority to send copies of applications for development of “potential strategic significance”, or PSI, to the Mayor. PSIs include the development of more than 150 houses or flats. The Mayor may direct that the local planning authority refuse an application under article 6, if he considers that to grant permission would be contrary to the London Plan “or prejudicial to its implementation” or “otherwise contrary to good strategic planning in Greater London.” In so doing, he must consider the effect which granting permission would have on the health of persons in Greater London. Alternatively, he may direct under article 7 that he and not the local planning authority shall determine the application. In deciding whether to do so, the Mayor has to consider whether the local planning authority is meeting the housing targets, and the affordable housing targets, in the development plan.

SPG, like an SPD, is not part of the statutory development plan, and the force of s38(6) Town and Country Planning Act 1990 does not apply to it: if lawful, it is merely a material consideration to which regard may be had; it is not a document with which development control decisions must accord unless material considerations indicate otherwise. Nonetheless, as a material consideration, it is relevant to the development control decisions taken by the Borough Councils, at least whenever the policies of the London Plan to which it relates are relevant to the decision in question.

First the 2016 London Plan. Policy 3.11 deals with affordable housing targets. It emphasises the need to maximise affordable housing provision, providing at least 17000 more affordable homes per year in London. Boroughs should set overall affordable housing targets in their Local Development Frameworks, taking account of a variety of factors including housing requirements identified in line with London Plan policies, meeting the range of housing targets set out in the London Plan, SPG and the Mayor’s Housing Strategy, and the viability of future development. The supporting text to this policy said that the Mayor would engage with the Boroughs in the setting of affordable housing targets which would be in general conformity with the London Plan’s strategic targets. “Supplementary guidance will provide indicative guidance on the approach set out in Policy 3.11 to inform the process.” I note the reference to SPG in policy and supporting text. There was SPG, but it was superseded by the SPG produced by the new Mayor, which is contentious in this case.

Policy 3.12 is headed “Negotiating affordable housing on individual private residential and mixed use schemes: Planning decisions and LDF preparation”. It is the crucial policy for this purpose. I set it out in full:

“A The maximum reasonable amount of affordable housing should be sought when negotiating on individual private residential and mixed use schemes, having regard to:

a)

current and future requirements for affordable housing at local and regional levels identified in line with Policies 3.8, 3.10 and 3.11 and having particular regard to the guidance provided by Mayor through the London Housing Strategy, supplementary guidance and the London Plan Annual Report (see paragraph 3.68).

b)

affordable housing targets adopted in line with Policy 3.11.

c)

the need to encourage rather than restrain residential development (Policy 3.3).

d)

the need to promote mixed and balanced communities (Policy 3.9).

e)

the size and type of affordable housing needed in particular locations.

f)

the specific circumstances of individual sites.

g)

resources available to fund affordable housing, to maximise affordable housing output and the investment criteria set by the Mayor.

h)

the priority to be accorded to provision of affordable family housing in policies 3.8 and 3.11.

B. Negotiations on sites should take account of their individual circumstances including development viability, the availability of public subsidy, the implications of phased development including provisions for re-appraising the viability of schemes prior to implementation (‘contingent obligations’) and other scheme requirements.

C. Affordable housing should normally be provided on-site. In exceptional cases where it can be demonstrated robustly that this is not appropriate in terms of the policies in this Plan, it may be provided off-site. A cash in lieu contribution should only be accepted where this would have demonstrated benefits in furthering the affordable housing and other policies in this Plan and should be ring-fenced and, if appropriate, pooled to secure additional affordable housing either on identified sites elsewhere or as part of an agreed programme for provision of affordable housing.”

“Contingent obligations” are defined in the London Plan Glossary as follows:

“The use of s106 agreements to enable and define mechanisms for the re-appraisal of viability prior to the implementation of schemes in whole or in part which are likely to take many years to implement. These mechanisms recognise the need to maximise reasonable affordable housing provision, and to address the economic uncertainties which may arise over the lifetime of a proposal. Such provisions are sometimes incorrectly called ‘overage’ provisions.”

The supporting text refers in [3.72] to the Mayor seeking “to maximise affordable housing output and expects developers to make the most effective use of available housing resources to achieve this objective.”

The previous Mayor produced SPG in March 2016. This dealt with affordable housing to the lawfulness of which the Claimants raised no objection. It said:

“4.3

CONTINGENT OBLIGATION REVIEW MECHANISMS AND CASCADES

4.3.1.

To maximise affordable housing output (and other public benefits) on schemes with long build out times, at times of economic uncertainty, and/or where there are significant changes in costs or values the Plan provides support for the use contingent obligations and review mechanisms.

4.3.2

Contingent obligations and review mechanisms provide a reappraisal mechanism which specifies the scope of a review of viability for longer term, non-phased schemes and for each phase of phased developments…

4.3.3

Review mechanisms are encouraged to be considered when a large scheme is built out in phases and/or is built out over a long period of time. The mechanism should specify the scope of a review of viability for each phase or relevant phase of development. For schemes with a shorter development term consideration should be given to using S106 clauses to trigger a review of viability if a scheme is not substantially complete by a specified date. Such approaches are intended to support effective and equitable implementation of planning policy of planning policy while also providing flexibility to address viability concerns.

4.3.4

These arrangements must address the requirements of legislation and national guidance, which can provide the basis for securing affordable housing. In addition they should recognise that applications must be determined on the basis of the information available at the time whilst taking account of the fact that viability may be different at the time of implementation.”

The SPG then set out a number of factors to be borne in mind when arranging the review mechanisms to feature in s106 agreements. These included identifying the points at which the re-appraisal review should be carried out, establishing on a case by case basis the threshold levels of viability at which an additional contribution would be required, any cap on it, and the profit split in relation to any additional profits identified.

The SPG at issue here is different. The Executive Summary suffices because it is clearer than the precise operational text of the SPG, and nothing here turns on any textual differences or on the mid-term review:

“8 The second part of the SPG sets out the ‘threshold approach’ to viability, which is where the approach to viability information differs depending on the level of affordable housing being provided.

Fast Track Route

9 Applications that meet or exceed 35 per cent affordable housing provision without public subsidy, provide affordable housing on –site, meet the specified tenure mix, and meet other planning requirements and obligations to the satisfaction of the LPA and the Mayor where relevant, are not required to submit viability information. Such schemes will be subject to an early viability review, but this is only triggered if an agreed level of progress is not made within two years of planning permission being granted (or a timeframe agreed by the LPA and set out within the S106 agreement).

Viability Tested Route

10 Schemes which do not meet the 35 per cent affordable housing threshold, or require public subsidy to do so, will be required to submit detailed viability information (in the form set out in Part three) which will be scrutinised by the Local Planning Authority (LPA), and where relevant the Mayor, and treated transparently. Where a LPA or the Mayor determines that a greater level of affordable housing could viably be supported, a higher level of affordable housing will be required which may exceed the 35 per cent threshold. In addition, early and late viability reviews will be applied to all schemes that do not meet the threshold in order to ensure that affordable housing contributions are increased if viability improves over time.

11 The different approaches between these two routes provide a strong incentive for applicants to meet the 35 per cent affordable housing threshold, which offers far greater certainty and the opportunity to move away from protracted and uncertain viability negotiations. This will help to deliver more affordable housing through the planning system whilst also ensuring development comes forward at faster rate.”

The Executive Summary at [5] stated that local planning authorities were strongly encouraged to follow this approach “for all schemes providing 10 or more homes.”

I need also to refer to the draft London Plan. Policy H6 adopts the same 35 per cent threshold approach for private non-industrial land development and applies it only to developments exceeding ten units. This threshold will be reviewed over time and “if appropriate increased through SPG.” The fast track, that is requiring no viability appraisal, applies only where that threshold is provided on-site without public subsidy. It too is subject to an early stage viability review if an agreed level of progress on implementation is not made within two years of the grant of permission. The viability tested route involves the early stage review on the same basis as the fast track, a midterm review and a late stage review. It is consistent with the SPG at issue. Differences from the London Plan are irrelevant. Mr Warren QC for the Claimants relied upon H6 for his contention that the SPG, at least in so far as it is the precursor to H6, is unlawful because it is policy, as its emergence as policy H6 showed.

The draft London Plan is also a material consideration for planning decisions. There is guidance on the weight to be given to it in Annex 1 to the NPPF at [216]:

“…decision-takers may also give weight to relevant policies in emerging plans according to:

•

the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

•

the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

•

the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”

Mr Burgess’ evidence for all four Claimants, though Group Land and Planning Director of Churchill Retirement Living Ltd, explained the difficulties which they faced, and why those two aspects mattered to them, as developers of specialist housing schemes for the elderly: development on smaller sites - usually brownfield, higher build costs, significant communal facilities and spaces which were not for sale - making them more costly per square metre than most market housing, and particularly so in London. These schemes were constructed in a single phase, and could not meet affordable specialist housing accommodation requirements on-site, as had been accepted for years; they always provided viability appraisals to justify off-site contributions to affordable housing, and always had to be completed as a whole before any elderly occupiers moved in; they had a markedly slower selling rate. This made the Claimants less able to compete with general house builders in site acquisition.

Mr Burgess said that the acute pressures, on the viability of specialist housing schemes, made it essential that the risk of the development’s returns falling significantly below expectations was reduced to a minimum. They relied on various forms of borrowing to fund site purchases. The standard but notional 20 percent development return used in such appraisals was the bare minimum “on the basis that the risk associated with the affordable housing cost is known…If there is a risk that [that] cost might rise significantly, the risk profile becomes unacceptable….” Mr Warren emphasised that it is the risk which matters when deciding on what price to pay for a site. And it is that extra risk which Mr Burgess said affected them more than those in the general market. The effect of the late stage review was felt by the Claimants at the stage of bidding for the sites in the first place; the uncertainty about the amount of money which might have to be paid over at the late stage review affected the calculation of risk for borrowing, in such a way as to make the funding impossible.

They could never reach the 35 per cent on-site threshold anyway. Their proposals, unlike general housing, would now, under the SPG, always have to go through the expensive viability-tested route procedure, which would always include the additional cost and uncertainty of late stage review. At present all house builders had to produce viability appraisals for all sites; the first stage review applied where there was a delay in the development getting under way, and the second stage review was limited to those sites where the development was phased. At present that second stage review did not apply to the Claimants’ developments which were always single phase. The SPG changes further adversely affected their ability to compete because, for those sites where more than 35 percent affordable housing could be provided, the general housebuilders had the advantage of knowing that there was a potential windfall if they started early and did not phase the development. The Claimants had not acquired a site in London since the SPG was promulgated.

These effects were not accepted by the Mayor, but I am not concerned with the merits or rationality of the SPG. I refer to what the Claimants said simply to explain why the issues matter to them.

Mr Warren first submits that the SPG contains policy; this can only be produced in the spatial strategy i.e. the development plan; ss334, and following the procedure in s335, of the 1999 Act. The particular aspects of the SPG which he submitted were general policies in respect of the development and use of land in Greater London were the 35 percent threshold, the fast-track, and the viability tested route, with three viability appraisals, (initial, early stage and late stage), the deliberately slow-track. Mr Warren supports his submission by reference to the draft London Plan, where the Mayor now treats those aspects as some of his proposed general policies for the spatial strategy for Greater London. Ms Peters, the London Plan Manager at the GLA, said in her witness statement that it is now proposed as policy in the draft Plan, because the Mayor intends that eventually the force of s38(6) of the 2004 Act should apply to it.

There is no judicial guidance on what constitutes policy and what SPG, within the framework of the GLA, and little of relevance to the limits on the lawful production of SPG under the GLAA. R (Wakil) v Hammersmith and Fulham LBC [2012] EWHC 1411 (QB), related to the different statutory context of s19 Planning and Compulsory Purchase Act 2004. The actual decision cannot therefore be applied directly, and the 2004 Act criteria cannot be applied by some sort of analogous reasoning to the more general framework here. Wilkie J however held [81-82] that it was for a court, interpreting the Act and the document in question, and applying the one to the other, to rule on whether a document was truly an SPD or a DPD. I do not disagree with that approach, although there was more detail to that statutory framework to assist the court, and I think that it requires qualification here.

The same applies to R (Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 (Admin). The key reason why the document at issue was not an SPD was that the Plan itself contained no affordable housing policy, to which the SPD affordable housing policy could be supplemental. But what Jay J said in [92] is relevant: the document contained “statements of the nature of policies which pertain to the development and use of land which the Council wishes to encourage, pending its adoption of a new local plan….It is an interim policy in the nature of a DPD.” It should have followed the procedure for a DPD. Jay J formed a view himself as to what the nature of the document was for the purpose fitting it into the different statutory framework applicable there. I have the same qualifications to make as over Wakil.

The statutory framework here is much closer to that in Westminster City Council v Great Portland Estates plc [1985] AC 661, where the question was whether non-statutory policies, so described, were in fact the Council’s policies which ought to have been in its recently adopted statutory development plan. The Plan provided for office development to be refused outside the central activities zone “except in special circumstances.” These circumstances were to be set out in non-statutory guidance. These guidelines referred to its guidance as policies, which did not help the Council’s presentation of its case. The question was whether they contained policies for the development of land; it was concluded that they did contain development control policies for office development in the Council’s area outside the central activities zone; 674 C-H, per Lord Scarman. Those ought to have been in the statutory development plan not just because they were in truth policies and the Inspector had said as much, but because the plan was being produced. The statutory duties at issue were those which dealt with what should be in a plan when it was being produced. Nonetheless, the Court reached the decision as to the legal nature of the documents, policy or guidance; it did not leave it as a matter of the reasonable planning judgment of the planning authority.

The first issue here therefore is whether, applying s334 of the 1999 Act, the aspects of the SPG complained of by Mr Warren are among the Mayor’s “general policies” in respect of development and use of land in Greater London? The second is whether, if so, that makes it necessarily unlawful for them to have been produced as SPG.

As to the first, it is to my mind inescapable but that they are now policies, at least for the time being. That is exactly what the Mayor has proclaimed them to be by including them in policy H6. They have been made policy so that the weight of s38(6) is to be brought to bear on them. There is no evidence either way about whether, and if so when, the Mayor changed his mind about their eventual status after they were issued as SPG. As I read the evidence, the SPG was issued as SPG so that the change of approach which the new Mayor wanted to bring about, could be implemented as soon as possible without waiting for its possible appearance in the more wide-ranging review of the London Plan. There is now no distinction in that respect between the status of the “guidance” in this SPG and the “policy” in the draft London Plan. Both H6 and its SPG equivalent are now, and for the time being, policies. Such similar “approaches” cannot have different statuses.

Had the Mayor not later proclaimed the aspects complained of by Mr Warren to be policies, I would have held them to be SPG on the simple “policy” or “not policy” argument Mr Warren presented, quite apart from the issue of consistency with the London Plan. They amount to detailed advice, not without expressions of Nelsonian expectations as to its observance, about how to conduct the negotiations for affordable housing contributions envisaged by policy 3.12 of the London Plan.

But s334 does not draw a simple distinction between what is and what is not policy, and I do not want this judgment to be misread as holding that the SPG, and at this level of detail, must as a matter of law be in the London Plan or alternatively that the SPG cannot lawfully be included in the Plan as policy. I have not been addressed on what I consider to be the real question, which is whether, when issued, and now, the SPG and H6 must be or cannot or may be part of the Mayor’s “general policies in respect of the development and use of land in Greater London”, “dealing with matters of strategic importance.” They may contain a level of detail for the control of negotiations in quite small forms of development, and larger non-PSI developments, which excludes them from s334, though I do not doubt that the levels of affordable housing developed on new housing sites, can be seen as a strategic matter. In particular, when the draft London Plan goes for public examination, the question of whether draft policy H6, which takes the SPG into the draft Plan, is “strategic” and “general” may be one on which the inspector after the examination in public expresses a view. I would not want what I say to resolve the content of the draft London Plan, in advance of any inspector’s consideration and report. I note the importance attached to the inspector’s appraisal in Great Portland Estates, and this is not a case where the route adopted is infected by a desire to avoid the scrutiny which a policy properly requires.

That brings me to the qualifications I need to express about the proper role of the judge in deciding whether a document must or must not be in a development plan. That after all is the basis upon which Mr Warren argued this point, though only addressing the “policy “or “not policy” aspect. First, the line between guidance and policy is not a bright line, particularly when it comes to an assessment of the level of detail appropriate for a plan. I see nothing wrong with one planning authority taking the view that, for it, an issue requires the force of s38(6) of the 2004 Act to be applied, and so its policy is promulgated as a development plan policy, while another authority or its successor, could decide that precisely the same point was best left for guidance.

Second, though it is for the Court to decide whether a document constitutes a policy which must or must not be in the spatial strategy, s334 still leaves considerable room for the Court to respect the plan-maker’s judgment on what is to receive the weight of the development plan, or is too detailed for a spatial strategy, where that is the basis for the decision. Such an approach to the distinction between policy and guidance, which I regard as lawful, is not readily caught by a judicially determined hard and fast line as to what falls within s334. The basis upon which a ruling is made, which turns on the appropriateness of the level of detail for inclusion in a development plan, or the desirability of that level having the force of s38(6) behind it, has to respect the legitimacy of differing plan-maker’s judgments about where that line should be drawn, and has to recognise the potential role of the inspector, in setting appropriate levels of detail for a statutory development plan.

The second issue is the basis on which, if the SPG were policy when issued, it was unlawful to issue it. Mr Warren can gain no help from the cases he cited on the 2004 statutory framework. The contrast with the 2004 Act and Regulations is not helpful to him. He cited no statutory provision in the GLAA which forbad it, expressly or by necessary implication. Great Portland Estates is about an authority deliberately excluding its policies from a new plan in breach of duties which applied to the content of a new plan. It is not about the production of policy, by whatever name, where there is no new plan which should include it. This issue, which Great Portland Estates did not consider, was one which I considered in R (JA Pye (Oxford) Ltd and others) v Oxford City Council [2001] EWHC 870 Admin 870: does the obligation to produce policies in a new development plan preclude their later production, otherwise than as part of a reviewed plan, where there has been no attempt to circumvent the statutory development plan process? I concluded in [64-66] that the obligation to include policies in a plan was not a prohibition thereafter on the production of new policies otherwise than in a draft replacement plan, where there was no unlawfulness in the non-production of the draft plan to incorporate them, and even if the SPG was of such a nature that it should be included in a draft statutory plan were one produced. There, the decision to produce SPG was not a decision not to produce a Local Plan review, but to produce it in advance of such a review, because of the timescales involved in the production of the latter [111-112]. On appeal, [2002] EWCA Civ 1116, Pill LJ, with whom Mummery LJ and Nelson J agreed, the Court did not deal with that issue, though I sense caution about what I said rather than implicit approval. It dealt only with the issue of consistency between the SPG and the development plan, to which I shall come. But it is an issue here: did the fact that the Mayor had, on his view, to include H6 in the draft Plan, mean that he could not lawfully produce and consult on policy in advance?

I am not minded to disagree with what I said in Pye, though I have reconsidered it. Pye contemplated a position where the statutory duty had been complied with when the plan was adopted, unlike the Great Portland Estates case. It contemplated that there was no unlawful failure to start the local plan review process, and that the SPG was not a device to avoid scrutiny and independent examination. Neither of those caveats apply here.

It follows that, even if the SPG were policy when issued, I would not have held its production to be unlawful on that account.

The second point made by Mr Warren was that the SPG was inconsistent with the London Plan. He appeared to treat that as an aspect of his argument that the SPG was policy, rather than as a separate basis for its unlawfulness. I shall consider both possible bases for inconsistency with the London Plan making the SPG unlawful.

In Pye, above, Pill LJ held [10] that the then PPG was reflecting the “concept of a plan-led system” in requiring SPG to be consistent with the development plan. He continued: “A system is not truly plan-led if the policies in a duly adopted local plan can be nullified by less formal procedures such as SPG.” At [31] he referred to the weight given to inconsistent draft replacement plans which have gone through no further stages than this SPG, as reducing the problem. But the actual conclusion was that there was no inconsistency between the SPG and the development plan. I am not clear how far what Pill LJ said in [10] can be the basis for the judgment. After all, s38(6) and its predecessor meant that decisions would have to be made in accordance with the development plan unless material considerations indicated otherwise. It is legally impossible for SPG to “nullify” the adopted local plan. Nor does any statutory provision prevent such views being expressed by the planning authority on a particular topic in advance of a review, or expressed as its policy. I see no such prohibition as a necessary implication of the statutory provisions for the Greater London Plan, or as present in the framework applicable in Pye.

I consider that he was driving at a wider point, relevant to Pye. This is that the SPG is not a substitute for proper reviews of a Plan, and that, as with Great Portland Estates, what is policy must be in the Plan when reviewed. Either of those would undermine the plan-led system, and to put it in legal terms, would contravene the language of the statutory provisions for the review of development plans. It appears to me that he saw the unlawfulness in producing SPG, inconsistent with the development plan, as arising from conflict with the PPG, when the authority intended its SPG to be consistent with the PPG and the development plan; [27].

Here the Mayor clearly did not intend to produce SPG in conflict with the London Plan, let alone to avoid the development plan process. The Executive Summary of the SPG at [4] states that it is “guidance to ensure that existing policy is as effective as possible…it does not and cannot introduce new policy.” Indeed, the consistency of the SPG with the London Plan was a theme of the Defendant’s response to Grounds 2 and 3, SEA and PSED. It is inherent in the concept of SPG that it purports to supplement and not to contradict development plan policy. In so far as he did produce SPG in conflict with the London Plan, he would have misdirected himself as to the meaning and effect of either the Plan or the SPG and so failed, in promulgating it, to have regard to a material consideration. Such an approach reflects Pye [27]. I am prepared to find the SPG unlawful on that basis, if there is an inconsistency between it and the London Plan.

I am not prepared to hold that conflict with development plan policy of itself makes a non-statutory document unlawful. If it states that it is in conflict with the development plan because that plan is now out of date, for example because of changes in Government policy as might be found in the NPPF, or because the review of the Plan was delayed for proper reasons, I see no basis for it to be unlawful. The weight to be given to it is quite another in the light of s38(6), but the NPPF contains advice which conflicts with development plans up and down the country, and is not on that account unlawful. If an authority seeks to put forward some policy to cover the period when it is out of date, which could happen very quickly with new government policy, I see no reason to hold its actions unlawful. The plan-led system is supported by the proper application of s38(6), which can readily accommodate expressions of policy in conflict with the development plan. It does so often when a new draft plan is issued.

On that basis I turn to the alleged inconsistencies. There are two areas where inconsistency with the London Plan is said to arise: (1) the most important, is the introduction by the SPG of a late stage review to single phase sites where the London Plan only envisaged those for phased developments; (2) the adoption of a 35 per cent affordable housing on-site threshold at which no viability information was required, whereas the London Plan required each site to provide the maximum reasonable amount of affordable housing, which could be greater than 35 percent.

Mr Warren submitted that policy 3.12 B of the London Plan meant that “re-appraising the viability of schemes prior to implementation (contingent obligations)” only arose as one of the “implications of phased development”. It could not be applied, consistently with the Plan other than to a phased development. Therefore, to apply it, as the SPG did, to a single-phase development was inconsistent with the Plan. The definition of “contingent obligations” refers to viability appraisals “prior to the implementation of schemes in whole or in part which are likely to take many years to implement.”

It is clear that the SPG does indeed apply provisions for re-appraisal to single stage or phase schemes.

Mr Brown QC for the Defendant pointed to the context of the London Plan policy and the SPG. The supporting text to policy 3.11 envisaged a role for SPG in guiding the approach in policy 3.11 to maximising affordable housing. Both the London Plan and SPG sought to maximise affordable housing and contributions. Both envisaged that there should be viability appraisals, but the SPG recognised that these were time -consuming and expensive for the developers which had to produce them, and for local authorities which had to appraise them. The Plan recognised the need to encourage development, which submitted Mr Brown, meant that the process should not be made more time-consuming or expensive than it needed to be. The wording of policy 3.12A was clear that factors (a) to (h) were not exhaustive, and that the factors in 3.12B were not exhaustive, but merely “included “ those identified. The inclusion of provisions for re-appraisal in the “implications of phased development” did not mean that they were excluded from applying elsewhere.

The issue is not whether the SPG in this respect is sensible or effective. It comes down to a narrow issue of construction of the Plan, and whether policy 3.12 by including “provision for re-appraisal” in the reference to “the implications of phased development” meant that re-appraisal only applied to phased developments and was by implication excluded in other circumstances. If policy 3.12 contained no reference to the definition of “contingent obligations”, I would have found that the provision for re-appraisal was tied to phased development, and that to introduce it for non-phased development was not permitted by the Plan. However, the definition of “contingent obligations”, which is what the language following “phased development” embraces, needs attention.

It is clear that, in the context of re-appraisal, its reference to “implementation” of schemes in whole or in part of which are likely to take many years to implement, means “completion” rather than the commencement of development. It deals with schemes which are taking many years to completion from permission. One problem being tackled by the definition of “contingent obligations” is the delayed start to development, during which time the viability appraisal which secured the permission may have become out of date, as land values or selling prices may have increased, warranting an increased contribution from the developer. The definition itself does not refer to phased development as being its sole focus; its focus is on the length of time taken to implement development. The problem of development which in whole or in part is “likely to take many years to implement” is not confined to phased development, nor necessarily always present in a phased development. I consider that it would be too legalistic a reading to say that the definition of “contingent obligations” is confined by policy 3.12 to phased developments, and that the delayed start to a single phase development, however large, is excluded from re-appraisal. Reading policy 3.12 in that light, re-appraisal cannot be confined to multi-phase schemes.

This is consistent with the approach adopted in the 2016 SPG in 4.3.3: review of viability where a scheme, phased or not, was not substantially completed by a date specified in the s106 agreement. It is also clear that the 2016 SPG in 4.3.2 treated the re-appraisal as applying to longer term non-phased, that is, single phase schemes; that is reflected in 4.3.3 first sentence. So, the application of re-appraisal to single phase schemes would not be new in principle. I appreciate that the 2016 SPG is no more a tool of interpretation of the London Plan than the current SPG. But its approach was consistent with an interpretation of “contingent obligations” which covered both single and multi-phase schemes, and was not challenged.

However, this approach to the scope of policy 3.12, read with the definition of “contingent obligations” shows that re-appraisal in policy 3.12 is not at large for the decision-maker but must relate to the time development is likely to take. The 2016 SPG correctly directed itself at re-appraisal where some long time had lapsed. This SPG is deliberately quite different, and in my judgment is not consistent with policy 3.12 and the definition of “contingent obligation”.

This SPG is directed at 3.12B, and the factors which should be taken into account in negotiations, including (f) the specific circumstances of individual sites. One of those, drawn from the definition of “contingent obligations”, will be the time a development is likely to take to build it out, phased or not. Provision can be made for an early stage review, lest substantial progress is delayed to the developer’s advantage, for whatever reason. However, this SPG requires an early and a late stage review on every site yielding affordable housing below 35 percent on-site, in addition to the initial appraisal, regardless of the time development is anticipated to take or is in fact taking or has taken.

This is contrary to the definition of “contingent obligation” which envisages re-appraisal only when related to the likely length of time a development may take, or against the risk of a delayed start. Without being overly precise, its language refers to schemes in whole or part “which are likely to take many years to implement” and the need to address “economic uncertainties which may arise over the lifetime of a proposal”. This is quite inconsistent with re-appraisals regardless of the actual or expected duration of implementation. It is also quite inconsistent with re-appraisal, let alone two regardless of time, on every site. The SPG moreover is not directed at timescale or economic uncertainties, or at least not only at that. It creates a stick to make the 35 percent threshold carrot more appetising. Hence, it is to apply to all sites. It is not consistent with an obligation to consider “the specific circumstances of individual sites.” That would not be saved by a reference to “save in exceptional circumstances”, which would merely highlight the conflict with 3.12(f).

Negotiations already should take account of individual circumstances including the fact that the appraisal may over time need to be updated. But the London Plan requires some justification by reference to the time taken to develop. The SPG removed that.

Mr Warren also submitted that the 35 percent threshold was unlawful because there would be cases where that threshold did not capture the maximum reasonable amount of affordable housing, and was thus inconsistent with policy 3.12A. I disagree. I accept that there may be such cases, though there is no sound evidence about how many. Rather there was evidence, which the Mayor is entitled to rely on, in his judgment, that the policy was achieving very much less than that on average; the SPG at [1.3] refers to “just 13 percent of homes given planning permission” being affordable. He is entitled to recognise that the production of viability appraisals is time-consuming and expensive, and to seek to introduce incentives for developers to increase very substantially the offer of affordable housing, so as to avoid that time and expense, and he is entitled to deal with delayed starts and longer time scale developments by way of re-appraisals. I think that policies 3.11 and 3.12, especially 3.12B permit him to take the view that an incentive to developers to make generally very much larger proportions of a site available for affordable housing is a proper use of the development control procedures to which SPG can be properly applied. After all it is no more than offering the opportunity to avoid a process, but not at the price of the fundamental aim. The need to encourage development, [3.12(c)], and to promote mixed and balanced communities, [3.12(d)], are relevant to that approach. Besides, the development control authority could decide to adopt a different approach on any individual site. The London Plan does not require a viability appraisal for any site.

By contrast, the language of the London Plan does not permit the imposition of a requirement for all sites over 10 homes, of a specific requirement to produce at least three viability appraisals, and more if the phases so turn out. Nor does it permit it exceptionally. It permits it only where, in general, the timescale or scale of development means that it is likely to take many years to complete a phase or the whole.

On that point, I find that the SPG is not consistent with the London Plan in one respect, and is to that extent not lawful. I give permission for the point to be argued. I will hear submissions on the appropriate remedy, if any, for the inconsistency I have found to exist.

The status of SPG matters little now that the draft London Plan has been published and consulted upon, containing H6. Draft plans often are inconsistent with their predecessors and are given increasing weight as they progress, as outlined in the NPPF. Once the Mayor has considered the consultation responses to the draft Plan, the period for delivering which has expired, and has amended the Plan as he sees fit, it will have no lesser weight than the SPG. Giving some weight to draft policy which is inconsistent with the development plan is not uncommon. The NPPF contains material which is not consistent with developmental plans. The issue about the status and consistency of the SPG is not one of continuing importance.

I should add that I found no real assistance on this issue in Parkhurst Road Ltd v SSCLG [2018] EWHC 991 (Admin).

Mr Warren submitted that the SPG fell within the scope of the SEA Regulations. Regulation 5(2) required environmental assessment of “a plan or programme which (a) is prepared for…town and country planning or land use, and (b) sets the framework for future development consents of projects listed in Annex I or II to Council Directive 85/337 EEC. as amended….” Housing developments are not Annex 1 developments. They may be Annex II projects to the extent that they amount to “urban development projects.” By Regulation 8, where such an assessment is required, then absent such an assessment, the plan cannot be adopted. But such an assessment is only required where there has been a determination or direction by the GLA or Secretary of State that such a determination is required. There has been no such determination or direction. The obligation of the GLA to carry out an assessment of the environmental effects of a plan or programme, if the SPG be such, only arises where such a determination or direction is that the plan is likely to have significant environmental effects. This ground does not focus on the absence of such a decision; it contends that the SPG is “a plan or programme” and therefore required SEA.

There is scope for debate about whether or not the SPG is a plan or programme for these purposes. But that is not the only hurdle Mr Warren must overcome. There appears to be no decision by the Mayor that there was no likely significant environmental effect, because he saw the SPG as consistent with the London Plan which had been subject to SEA, or as a minor amendment, occasioning no such effect either. Mr Warren has to show that the Mayor ought to have considered whether there were likely to be any significant environmental effects, as required for assessment by Reg. 5(4) and that had he considered it, he might have concluded that there were.

Schedule 1 sets out the criteria for determining the likely significant effects of the plan at issue in two parts: part (1) looks at the degree to which it sets a framework for projects and activities, and influences them, its relevance for the promotion of sustainable development, environmental problems relevant to the plan or programme and the implementation of EU programmes for the environment linked to waste management and water protection; part (2) deals with the characteristics of the area likely to be affected, including duration and cumulative nature of the effects, “the risks to human health or the environment (for example due to accidents)”, and “the magnitude and spatial effect of the effects (geographical area and size of the population likely to be affected).” Mr Warren referred me to the topics which an environmental assessment was required to cover, which in schedule 2 included “issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors.” and so on.

The refusal of permission on paper by Supperstone J specifically identified the unlikelihood of the SPG having a significant effect on the environment, notably on human health, one of the two factors highlighted as relevant by Mr Warren, along with “population”. Such possible effects on population and human health through urban development projects, in the form of housing developments of sufficient scale, include the beneficial effects of proper housing conditions for those who live in them. Yet this renewal application did not grapple seriously with that point.

I have already referred to the evidence of Mr Burgess for the Claimants that they had been unable to bid for sites successfully in the light of the effects of the changed guidance, not because of a direct loss of profitability of a development, through the removal of part of the profits which might emerge over and above those used in the initial and early stage viability appraisals, but because of the effect which the risk of that happening, as a result of a late stage review of viability, had on their ability to compete for sites with the general house builder. This had in reality forced them out of the Greater London housing market, which meant that specialist housing to buy for the elderly would not be provided, to the detriment of the health of those elderly people who wished to buy that sort of accommodation.

Whether that effect is truly the consequence of the changes to the SPG, and whether that means that no other private developer is taking their place for the provision of such housing was at issue in the evidence of Ms Peters for the Defendant. The evidence on this issue overlaps with that relevant to the PSED ground.

Ms Peters knew that the Claimants did not consider it viable to deliver affordable housing on-site with their developments; this was considered but not thought to outweigh the benefits of the SPG. The asserted adverse impacts would only apply to those who sought to purchase specialist accommodation and not to the elderly who preferred to remain in their homes with suitable support, which was the majority. Mixed and balanced development was just as important for the older person as for others: “a specific model preferred by some providers should not impact the delivery of a broader policy objective”. Other providers did offer affordable mixed tenure specialist older persons accommodation. The 2012 report “The role of the planning system in delivering housing choices for older Londoners” had not identified concerns of the sort referred to by the Claimants. The requirement that specialist accommodation should include on-site provision was already part of the London Plan, and the SPG was not the place for “arguing against current policy.” Specialist providers could follow the fast track route on the same basis as other housing developers. The 35 percent threshold was considered still to be appropriate for specialist housing developers on site to provide the same opportunities for those needing specialist affordable housing. The specialist could still follow the viability tested route to planning permission and argue that off-site provision or money in lieu was appropriate. The viability review provisions only bit, in terms of the sharing of unanticipated profits if there were such profits, although as Mr Warren pointed out, the exercise would still have to be gone through, with its associated time and cost.

Mr Brown emphasised that the impact on the Claimants’ provision of specialist accommodation for the elderly to purchase, was not that a viability appraisal was required, since they would always have had to do one as they would not provide affordable housing on site. The late stage review would not remove all the additional profits which, as at the initial appraisal were not forecast at all, but only a portion of what they had not anticipated (albeit that it was a one-way ratchet), so he submitted that it was difficult to see why, even on the Claimants’ case, the asserted consequence would come about. This particular funding issue had not been raised by the Claimants during the consultation process.

Mr Brown pointed to the Claimants’ own evidence that the delivery of affordable housing was far below the targets in the London Plan, a state of affairs existing long before the SPG, and on which the SPG was very unlikely to have had an adverse effect. He criticised their evidence that they had been unable to secure an interest in a site in Greater London since the SPG came into force, because the evidence related to a period of only three months after the SPG came into force, although I can see that the draft might have had some effect on how the site purchases were approached, knowing what might well be happening through the SPG in the near future. But he pointed out that there were no comparable figures for comparable periods in earlier years and that McCarthy & Stone acknowledged that over 40 years it had been able to develop very few schemes in London compared with the Home Counties, and had failed to reach Inner London. So, he submitted, there was no evidence that the SPG would disadvantage the elderly seeking specialist market accommodation compared with those seeking other forms of market housing, and have any let alone a significant effect on their health.

Although the SPG is not wholly consistent with the London Plan, which was subject to SEA, it cannot properly be seen as a minor amendment because it is of a lesser status to that extent because of s38(6). In the absence of a specific determination by the GLA as to the absence of a likelihood of significant environmental effects from the SPG, if it could constitute a “plan or programme”, I have no doubt from Ms Peters’ evidence that the Mayor would have concluded that no significant effect was likely and that such a conclusion would not have been challengeable.

There was also an Integrated Impact Assessment for the draft London Plan, which included SEA and an Equality Impact Assessment, by reference to the duration and area of impacts and various objectives. For the SEA this produced a blank square filled in with grey wash for objective 3 “To improve the mental and physical health and wellbeing of Londoners and to reduce health inequalities across the City and between communities”. The grey wash did not appear to mean “not applicable which had its own “n/a” notation. But it cannot mean more than “not likely to be significant.”

I refuse permission to argue this ground. It is unarguable, and in any event s31(3C) and (3D) Senior Courts Act1981 impel refusal, because the outcome would not have been one whit different if the possible error had not occurred.

Although Mr Warren referred to indirect discrimination in his Skeleton Argument, he confirmed that the only point he pursued in relation to the Equality Act 2010 was the PSED in s149(1). This requires a public authority in the exercise of its functions to:

“have due regard to the need to –(a) eliminate discrimination… prohibited by or under this Act; (c) advance equality of opportunity between persons who share a relevant protected characteristic and person who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

S149(3) provides what “having due regard” requires in relation to the need to advance equality under (1) (c) above: it involves by subsection (3) “having due regard in particular, to the need to (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristics that are different from the needs of persons who do not share it; (c) ….”

The relevant protected characteristics were age, sex, and disability. Mr Warren focused in particular on housing for the elderly and especially elderly women, in London.

The relevant principles are set out in R(Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [26] and approved in Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811.

S30(4)(a) and (aa) Greater London Authority Act 1999 requires the GLA, when exercising its powers under s30, to have regard to the effect which its exercise would have on the health of persons in Greater London and on “health inequalities between them.”

Mr Warren’s theme was that there was no evidence, for example in the form of an EqIA, that the impact of the SPG on the provision of specialist market housing for the elderly had been considered. This adverse impact, which would see the four Claimants withdrawing from the specialist housing market for the elderly in London had not been considered in relation to the s149 duty. It was not that they had ignored the need for such housing, but the Mayor and his advisers had not given the impact the specific consideration which s149 required. Indeed, he submitted that the evidence submitted by the Mayor showed a complete misunderstanding of the relationship between financial viability assessment and the delivery of specialist housing units, which in turn would affect the ability of the elderly to access such market housing.

In essence the point was that the elderly, who would be largely women, and would include disabled, would be disadvantaged in the market for specialist housing, by comparison with those who were not elderly or disabled purchasing in the general market, as a result of the impact of the SPG on the funding of the purchase of sites for specialist elderly housing. There would be a reduction or cessation in the provision of such housing in Greater London. The London Plan itself had been the subject of an EqIA, but the SPG had significant effects on this part of the market which that EqIA could not have considered.

I am satisfied that there is nothing in this point. It all turns on the evidence. Granted that there was no EqIA for the SPG, that does not mean that the duty has not been fulfilled. It means that the evidence has to be found elsewhere than in an EqIA for the SPG. The question I also accept is not whether the effects of the SPG on accommodation for the elderly, for women or the disabled was considered. It is whether the due regard was had to the constituent aims of the s149 duty, when those effects were considered.

The s149 Equality Act duty and the s30 GLAA duty were referred to in the report to the Mayor seeking approval of the draft SPG for consultation purposes, and again in the post-consultation report, recommending its approval and publication. But these reports provided no analysis of the application of the duties; they simply explained what the duties were. The former explained the duties and that they applied to the decision to publish the SPG for consultation: it said that the SPG supported the equalities objectives and policies of the London Plan which had been subject to a full EqIA: “Officers consider that this SPG does not raise any new equalities considerations.” The latter said that officers were satisfied that the PSED had been taken into account.

The evidence of Ms Smalley for the GLA, as principal adviser on access and inclusion in the London Plan team, makes it clear that that team did not ignore the need for affordable and accessible housing for disabled or elderly people when considering the SPG, though making no specific reference to the needs of those looking to buy market specialist housing. But there was nothing more specific in her evidence than I have set out. She set out in some detail, however, what had been done since the SPG, in relation to the draft London Plan, about specialist housing for the elderly, whether affordable or market. Research had been commissioned in April 2017 into the supply and demand for older persons housing, and the features they required. The benchmarks which it was hoped would then be produced for the provision of such housing would lead to a positive impact for older people and demonstrate how GLA dealt with the duties in s149.

Moreover, the draft London Housing Strategy was published for consultation in September 2017. The SPG was described as part of an aim to “boost” the provision of affordable housing. It was accompanied by an Impact Assessment, section 2 of which was entitled “Equalities”, and which dealt with the impacts on protected characteristics. This included sections on older people, women and disabilities. It concluded, after analysis, that all would benefit from increased housing and more affordable housing. Although older people were less likely to benefit from investment in affordable housing aimed at first time buyers, they stood to benefit from investment in specialised and supported housing, and from provision for social housing tenants to move, which would help the older person to move to more affordable and accessible housing in areas which better met their needs. Its section on disabilities would be applicable to the elderly disabled though they were not separately considered; likewise parts of its section on women. There was a short reference in the Impact Assessment to older and disabled people as experiencing particular housing problems, and needing accessible or adapted housing. Policy 4.2, which refers to the fast track and threshold, was said to benefit those with some protected characteristics who found it difficult to cover the costs of market housing.

The Integrated Impact Assessment for the draft London Plan considered impacts including equalities. This included the objective of improving health and reducing health inequalities as described for the SEA. It described the impacts, short to long term, direct and permanent, in Greater London as positive.

The draft Plan also includes, as H15, a policy specifically addressed to specialist older people’s housing, the purpose of which was to promote the needs of older residents, with affordable and accessible housing across a range of housing types, with supporting infrastructure, facilities and services, all seen as likely to improve health and wellbeing outcomes for older residents. The policies in the draft London plan continued, with for these purposes, immaterial alterations, the “approach” as Ms Smalley described it in the SPG.

Mr Brown submitted that those assessments for the draft Plan would be equally applicable to the SPG if the same form of analysis had been carried out for it. Ms Smalley said that “equality considerations and the requirements of and impacts on specific protected groups have been considered throughout the process of development” for the SPG and the draft Plan. She asserted that “due regard” had been had to the issues raised in s149.

Ms Peters referred to the way officers, experienced in the operation of the equality duty, considered the issues raised by s149 and the SPG: increasing affordable housing and speeding up its development would assist elderly people who needed such housing; they knew that “some” providers of specialist elderly people’s accommodation would not provide affordable elderly housing on the same site as elderly market housing, but judged that those who could not afford such housing should not be discriminated against; those forms of specialist accommodation offered by the Claimants were not the only options for specialist elderly accommodation, and other providers did offer mixed tenure specialist older person accommodation. The grounds of resistance gave examples.

She made the point that the provision of specialist older person housing had been the subject of consideration through a variety of planning changes, which had enabled her to understand the issues, policies and research on what elderly people needed by way of housing. Affordable housing for the elderly was an important issue. It was all this which enabled her to conclude that the SPG would have “a positive impact for older people.” Affordability and suitability of existing accommodation was an increasing problem and speeding up the provision of more accessible and affordable housing would benefit Londoners and provide greater choice for them. During the development of the SPG “the suitability of the proposed threshold approach and viability guidance for a number of specialist housing products was considered, including specialist older persons accommodation.” The SPG had not precluded specialist accommodation coming forward; the affordable housing policies still applied “albeit with further guidance as to how they could be applied.” Therefore, she considered that the SPG “would have a positive or at worst neutral impact on those older Londoners who require specialist accommodation.” And it would lead to more affordable housing accommodation being provided. She was satisfied that the SPG would have no adverse impacts on any person sharing a relevant protected characteristic. Part of her thinking was that the SPG changed no London Plan policy, but I cannot see that that affects the issue here.

Mr Brown submitted that the proper time for the particular funding-related equalities concern to be raised by the Claimants was during the consultation process but they had not done so.

I do not consider that this ground is arguable. It is quite clear from her evidence that Ms Peters did consider the PSED in relation to the SPG before it was promulgated. The broader issues had been considered for the purposes of the London Plan. There had been subsequent consideration in the Assessment for the Housing Strategy. The issues raised by the SPG have been considered in the Integrated Assessment for the draft Plan.

Mr Warren’s attack is only on one narrow aspect of s149, where he raises a very particular point about the effect of the SPG on the provision by the Claimants of specialist accommodation for the elderly to buy, and hence on those whose protected characteristics could be affected. That point is not actually grappled with in any of the equalities assessments. But the basis for that in Mr Burgess’ evidence ultimately concerns the financing arrangements of the Claimants. “Due regard” for s149 purposes, does not require all possible ways in which someone may be affected, including in this indirect way, to be considered. Still less does it do so when it has not been raised and explained to the degree necessary. It is a very indirect consequence, and not something which one would expect a planning authority to be aware of unless specifically told. “Due regard” does not require an encyclopaedic examination of all the ways, not by any means obvious, in which an equality effect might be argued to arise.

Ms Peters has also explained that she did not accept that the sort of problems which Mr Burgess described were soundly based or significant for the sector. She was entitled to come to that view, and in so doing to conclude that there was no impact of significance to be considered or which had been omitted.

Even if criticism can be made of the form in which the fulfilment of the PSED duty is recorded, and even if there was a point which could have been considered in the course of having “due regard”, I find it impossible to consider that the outcome of its consideration could have been different in view of the rejection by the GLA of the factual basis upon which the Claimants’ rely. It is not for me to resolve that issue. The GLA view is not unreasonable.

I refuse permission to argue this ground.

Mr Brown submitted that the proceedings had not been commenced promptly. He compared the lapse of time to the now generally prevailing 6 week time limit in planning challenges of various sorts, and the generally accepted need for promptness in bringing such claims and pointed to the lapse of time of about a month while the four Claimants co-ordinated their evidence and took the decisions to proceed. Mr Wacher, the GLA Strategic Planning Manager, gave evidence that a significant number of planning decisions had been reached, taking the SPG into account, some permitted and some refused, and that more were in the pipeline as the s106 agreements for affordable housing contributions were being negotiated.

I am not persuaded that there is any significant prejudice from the modest delay, nor that there would be from such grant of relief as is likely on the issue upon which the Claimants have succeeded. Inspectors were already taking different views about the consistency of the SPG with the London Plan, and indeed with the approach to viability assessment in the Government’s PPG and would continue to do so. The Parkhurst Road case does not resolve it. The draft Plan has been published and, when amended to the extent which the Mayor thinks appropriate now that the consultation period is over, it will be relevant to the decisions to which the SPG was relevant.

What will now be known is that it is inconsistent with the London Plan in one respect. I, at present, and subject to submissions, see no difference between saying that it is inconsistent to that extent and granting declaratory relief to that effect.

I grant permission to argue ground 1 and I will hear submission on the appropriate remedy for what I have found to be a degree of inconsistency between the London Plan and the SPG. I refuse permission to argue Grounds 2 and 3.