Secretary of State for Communities and Local Government v West Berkshire District Council & Anor [2016] EWCA Civ 441
West Berkshire national policy is a Court of Appeal judgment about how national planning policy sits alongside the statutory development plan, and about the legal standards for consultation and the public sector equality duty when Government changes planning policy.
The case concerned the Government’s 2014 small-site affordable-housing and tariff policy. The numerical thresholds in that policy are historical and should not be treated as current Planning Geek guidance.
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- Neutral citation
- [2016] EWCA Civ 441
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 11th May 2016
- Judge
- The Master of the Rolls, Lord Justice Laws and Lord Justice Treacy
- Case number
- C1/2015/2559
What the West Berkshire national policy case concerned
A Written Ministerial Statement dated 28th November 2014 introduced national policy saying that affordable-housing and tariff-style section 106 contributions should not normally be sought from sites of 10 units or fewer and no more than 1,000 square metres. A lower five-unit threshold could be used in certain designated rural areas, and the policy also introduced vacant building credit.
West Berkshire District Council and Reading Borough Council successfully challenged that policy in the High Court. Holgate J held it unlawful on four grounds.
The Secretary of State appealed. The Court of Appeal allowed the appeal on all four grounds.
National policy can be expressed in strong or unqualified terms
The Court of Appeal drew an important distinction between making policy and applying it.
A policy-maker can state national policy in firm and apparently unqualified language. It is not necessary for every policy statement to repeat the legal rule that individual decision-makers must remain open to exceptions.
What matters is how the policy is lawfully applied. A planning decision-maker must still exercise judgment and cannot treat policy as though it were binding legislation.
The development plan is the statutory starting point, not an automatic winner
Section 38(6) gives the development plan priority as the starting point for decisions. But the Court of Appeal stressed that this does not mean a development-plan policy must automatically receive greater weight than every other material consideration.
More recent national policy can be a material consideration capable of outweighing an older local policy in an individual decision. The decision-maker must carry out the statutory weighing exercise rather than mechanically choosing one policy source over another.
The Secretary of State’s policy-making power was a common-law power
The court also emphasised that the Secretary of State’s general power to formulate national planning policy did not come from a particular statutory provision. It was exercised under the Crown’s common-law powers.
That mattered to the argument about relevant considerations. The Secretary of State still had to act lawfully, rationally and fairly and could not use policy to frustrate the statutory planning system. But he was not subject to the same statutory duty to identify and consider every factor that might arise under a particular empowering Act.
The consultation was legally adequate
The High Court had found the 2014 consultation unfair and insufficiently informative. The Court of Appeal disagreed.
It held that the consultation material explained the proposal and the problem of disproportionate burdens on small-scale development sufficiently to permit intelligent responses. The law did not require the Government to consult on every detailed alternative or to explain why every different numerical threshold had been rejected.
The court also rejected the suggestion that conscientious consideration of responses meant the Minister had to accept the views put forward by consultees.
The public sector equality duty was ultimately satisfied
The Government had not considered the public sector equality duty before announcing the policy. It later reviewed the position and produced an Equality Statement.
The Court of Appeal held that the later assessment sufficiently addressed potential impacts on protected groups. It criticised the High Court’s more forensic approach to the document and held that section 149 requires due regard rather than a precise mathematical assessment of every potentially affected group.
The court nevertheless stressed the importance of proper and timely compliance. A later assessment does not automatically cure every failure. On these facts, however, where the later assessment was adequate and bad faith was not alleged, quashing the policy merely as a disciplinary measure was not justified.
The 2014 thresholds themselves are historical
This judgment remains useful for national policy, section 38(6), consultation and equality-duty principles. But the particular affordable-housing thresholds at the centre of the litigation belonged to the policy framework in force at that time.
For the current position, use our pages on affordable housing planning, section 106 agreements and vacant building credit.
Read the full West Berkshire judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
West Berkshire National Policy Case Law Page Updated: 9th September 2026