The London mayor’s office has been quick to claim victory following last week’s High Court ruling on the legal challenge to its Supplementary Planning Guidance (SPG) brought by four leading retirement housebuilders.
Deputy mayor for planning, regeneration and skills Jules Pipe welcomes the fact that it endorses the threshold approach, under which developments that provide at least 35% affordable housing are fast-tracked and do not need to undergo viability assessments.
“Our guidance sets out a clear approach that makes the planning system in London clearer, quicker and more consistent,” he says. “I am pleased that the judge has backed this approach, which will help us to turn around years of neglect when it comes to building the homes Londoners so desperately need.”
But was the ruling really as clear cut as this would suggest?
Andrew Burgess, planning director for Churchill Retirement Living, which lodged the challenge alongside McCarthy & Stone, Renaissance Retirement and PegasusLife, suggests not. He claims the mayor’s response to the ruling is “misleading” and notes that the developers won the support of the judge on some key points.
The quartet had argued that the SPG would make retirement housing schemes in London unviable because the way they are managed and the high building costs involved make it impossible to deliver 35% affordable housing. One of the key grounds for its case was that the SPG should have undergone an independent examination.
On this score, the judge agreed that the SPG “represents a substantive new policy, which should have been subject to an independent examination”. Crucially, the ruling also states that the SPG is “not consistent” with the London Plan and therefore “not lawful”.
Blythe Dunk, director of planning and development at JLL, says the ruling is a mixed bag for both the mayor and the retirement living developers.
Narrow planning point
He points out that nothing has been struck out of the SPG. “The grounds for the case were on such a narrow point of planning policy that this ruling was always going to leave the SPG largely intact as a legal document,” he says.
However, he says that “the ruling does rap the Greater London Authority on the knuckles to an extent” because the High Court’s “not lawful” SPG ruling gives retirement developers “a window of opportunity before the new London Plan comes in”.
Whether this will be enough for them remains to be seen.
“What doesn’t help the retirement developers is that the SPG policy is already incorporated into the emerging London Plan,” says Dunk. “If and when it comes into effect, this whole point will become irrelevant as the SPG will no longer be ‘inconsistent’ with the London Plan.”
But Burgess does not believe this is a foregone conclusion, because it is not the mayor of London who gives the green light for the London Plan. It is still subject to consultation and requires sign-off from the housing minister.
He says the case is far from over for the developers, because they will be making the same argument against the London Plan ahead of the publication of the final document in 2019-20. In short, while this battle is over, the war is not.