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Free-Standing Sustainable Development Assessment a Mistake

In Reigate and Banstead BC v SoS CLG [2017] EWHC 1562 (Admin), Lang, J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS).

The recently-adopted Local Plan provided for almost a 5 year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the Inspector worked on the basis that sustainable development should be approved in the absence of harm.  He found that there was not basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes).

The authority challenged the decision on the basis that the Inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (s38(6) PCPA 2004).

The judgment identifies ten key propositions for NPPF14 cases, including:

  • The need to distinguish between local and national policies which describe what qualifies as sustainable development (e.g. NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises.
  • That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v SoS CLG [2016] EWHC 3028 (Admin) and Cheshire East BC v SoS CLG [2016] EWHC 571 (Admin)). The Inspector could – in theory – have reached the same outcome by applying the s38(6) starting point but giving in efforts to close the OAN gap greater weight.  However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the Local Plan was adopted – the decision would be have been doomed to the same fate.
  • One proposition seems out of kilter with the rest – that the NPPF14 presumption “does not extend to a proposal which conflicts with the development plan“. Although not relevant in Reigate, NPPF14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out‑of‑date and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include ‘related’ development plan policies following Suffolk Coastal District Council v Hopkins Homes Ltd & Onr [2017] 1 WLR 1865).

DCO Decision Confirms Heritage Approach

In R (on the application of John Mars Jones on his own behalf and on behalf of the Pylon The Pressure Group) v The Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin), the High Court dismissed the judicial review of a Development Consent Order made under the Planning Act 2008 by the Secretary of State for Business, Energy and Industrial Strategy.  The Order authorised an overhead electricity line to wind farms following developer requests to connect to the network. The Claimant, whose Grade II* listed Tudor farm lay within 125 metres of the route, challenged the decision to make the Order on several grounds, including the treatment of heritage effects.

The Secretary of State was required to regard to two relevant policy statements under section 5 of the 2008 Act – Overarching National Policy Statement for Energy (EN-1) (“EN-1”) and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (“EN-5”).  The policy statements together required careful consideration of the feasibility of alternatives to overhead lines and the protection of heritage assets. He was required to determined the Order application in accordance with them unless, among other things, satisfied that the adverse impact of the proposals would outweigh the benefits.  He was also required to have regard to the desirability of preserving listed buildings or their setting (under regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010).

The Order was approved, on the basis that in the absence of substantial harm, there was no need for the disproportionate costs of undergrounding the cable section.

Dismissing the challenge, Lewis, J held on the main grounds that:

  • The  approach to heritage effects had been correct – identifying the scale of harm and then weighing the scheme benefits against, among other things, the heritage harm.
  • The regulation 3 duty had been complied with looking at the report and decision as a whole. There was no duty to consider alternatives not forming part of the Order scheme and the option of refusal had been properly considered.
  • Permanent extinguishment of private rights – despite the temporary nature of the Order -was not a principal controversial issue and did not require specific reasons to be given on it.
  • The fact that the weighing exercise was in a different part of the  part of the report to the assessment of heritage harm did not matter. It is worth noting that the limited (30 year) duration of the Order was accepted as minimising the impact on the setting of the listed buildings (being for period which would be insubstantial relative to the life of the buildings) and offering a sensitive approach to heritage effects.

Planning controversies demand clear reasons

A flurry of decisions on reasons have underlined the need for care in explaining planning decisions, from delegated reports to sensitive areas. Our comprehensive guide to the Oakley green belt case and other decisions is here.

The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal’s approach to the standard of reasons required of an authority granting permission for development of a scale “unprecedented in an AONB” in that case. The judgment confirms that reasons for approval may be required in planning matters where basic fairness demands it, despite the absence of a statutory duty, particularly where significant policy breaches are being entertained. It also highlights the benefits of dealing properly with the need for statements of reasons under the EIA regime.

Controversial proposals

The authority’s officers had recommended a less dense, but – according to its advisors – no less viable approach to delivering housing in the sensitive area.  Members rejected that approach on viability grounds and objectors challenged by judicial review on the basis of inadequate reasons.

No reasons required?

The defendant authority started from the position that there is no duty on planning authorities – unlike the Secretary of State – to give detailed reasons for the grant of permission (adopting the ‘light touch’ approach in R (Hawksworth Securities Plc) v Peterborough City Council & Ors [2016] EWHC 1870 (Admin)) where the standards applicable to an inspector’s decision on appeal were distinguished from merely an ‘administrative’ decisions by local planning authorities).

The Court of Appeal recognised that this approach “needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State.”  In the circumstances of Dover, several factors justified detailed reasons:

  • the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by “substantial reasons”;
  • a departure from officers’ advice;
  • the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Costly admin errors

The Committee minutes in question failed – against that standard – to give legally adequate reasons:

  • firstly, it was unclear whether members accepted their officers’ assessment of harm; if they did, they would have “opted to inflict irreversible harm on the AONB” on the limited material before them;
  • secondly, it was unclear whether they viewed viability issues as a mere risk, which would have made their obligation to address the issue of harm was “all the more acute”;
  • thirdly, it was not clear if they had applied a simple unweighted balance to AONB protections; and
  • finally, they had reached conclusions on visual screening which were “fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes”.

EIA goalie?

The judgment helpfully confirms that while the lack of a regulation 24 statement may not necessarily kill a decision where reasons are adequate on the record, it could save it where they are not.

The Supreme Court judgment, when it comes, should provide a definitive position on the basis and scope for reasons for approval. In the meantime, a little transparency and coherence for controversial decisions can only be a sensible approach.

The pendulum swings: case comment on David Wylde and Other v Waverley Borough Council (9 March 2017)

A new judicial review case concerning the interface of development agreements, judicial review and public procurement has recently been decided by the High Court.

The case concerned changes made to a historic development agreement (awarded in 2002) relating to the East Street area of Farnham.  Under the original agreement with Waverley Borough Council, the developer needed to pay at least £8.76m for the Council’s land.  The changes to the agreement appear to allow the developer to proceed with a far lower minimum land valuation of £3.19m (as well as other changes relating to the developer’s profit element).

The changes met with resistance in the form of five claimants, two of whom were parish councillors of Farnham, with the other claimants being members of local civic societies.

On its face, the case has some startling similarities with the Gottlieb v Winchester City Council case, where Cllr Gottlieb challenged his own Council’s proposals to unlawfully amend a historic development agreement (the changes also had the objective of making the scheme viable for the developer).  Cllr Gottlieb was successful and the development proposal came to a juddering halt after 12 years.

So in view of the similarities, was the same result reached here?  No.

Mr Justice Dove decided that the claimants did not have “legal standing” to bring judicial review proceedings, because they do not have a sufficient interest in the outcome of the competition (in contrast to the position of Cllr Gottlieb in his case).  So none of the arguments concerning public procurement were explored.  No doubt this is a bitter blow to those towns folk who are struggling to understand why a developer should be allowed to re-write the terms of a deal in their favour (resulting in the viability of a development scheme they vehemently oppose).

Standing in judicial review cases

There have been a number of cases on standing in judicial review, and Dove J’s reasoning is largely consistent with those rulings.  Some have resulted in permission being granted.  Others not.  This is a case where the pendulum has swung back in favour of the defendant public authority.

It cannot be disputed that the vagaries of the case law means that merely being a council tax payer is probably not enough (alone) to get standing to bring judicial review proceedings.

That said, Mr Justice Dove is critical of the Gottlieb decision.  We think that this criticism is misplaced.  Unlike a parish councillor complaining about a decision of the borough of which his/her parish forms part, Cllr Gottlieb was (and is) an elected member of the authority of who had taken the unlawful decision.  In our view this would have given him standing anyway, given his special ability to enforce the general public law obligations and fiduciary duties of the council – but this point was never properly addressed in the Gottlieb case.  The proper approach would have been for Dove J to distinguish the circumstances in Gottlieb from those of Wylde.

The judgment will no doubt be a relief to developers facing significant local opposition to their schemes, but, to make a broader point, we believe that it is in some ways regrettable that council tax payers are written out of the picture when it comes to judicial review in public procurement cases. The public procurement rules ensure fair play between bidders, encourage competition which is not only about price (or receipts for land disposal) but quality.  The inability to enforce those rules robs the public of an opportunity to influence place, something in which they certainly have a legitimate interest.

(Dentons acted for Cllr Gottlieb in his successful challenge against Winchester City Council.)

Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

Daylight/ Sunlight Error Fatal To Permission

In Watt, R (on the application of) v London Borough of Hackney & Anor [2016] EWHC 1978 (Admin), the High Court quashed the grant of permission for a mixed use development likely to adversely affect sunlight reaching adjacent open land used by the neighbouring school for children’s play. The application had been considered on the basis the redevelopment of the vacant site would have enhanced the character and appearance of the conservation area.

Latent defects

The authority relied on a daylighting report addressing the extent of reduction in daylight to the play land at different times of year. A claim for judicial review was made on several grounds and independent assessment – carried out after the claim – identified flaws in the original report, exaggerating the existing levels of daylight and so understating (by a third) the effect of the new scheme on the play land.

The judge admitted the new report as part of a ground of claim alleging an error of fact. The defendant authority offered its own evidence in response, but – crucially – did not object to its admission.

Errors of fact can be fatal

The judgment confirms that the error of fact justified quashing the permission in the circumstances: there was a factual error which created a misleading picture; the fact was ‘established’, in the sense of being uncontentious; neither the appellant (nor his advisers) were responsible; and finally, the error played a material part in the reasoning (on the basis that it was impossible to say that had not done so, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306).

Get your facts right

The daylight reaching the play area was above the relevant policy threshold with the correct analysis (just less far above than the original assessment had, wrongly, suggested). Despite the fact that the error may not have been decisive in the overall decision, though, the judge was prepared to quash the permission.  The judgment therefore confirms the risk that faulty technical work creates for planning decisions, even where the error itself is not decisive.

CPO – gentrification or regeneration?

The recent refusal by the Secretary of State to confirm Southwark Council’s CPO for the next phase of the Aylesbury Estate development demonstrates a meticulous adherence to  parts of the CPO Guidance which have largely been paid lip-service to in many previous CPO decisions.

The mantra that a compulsory purchase order should only be made in the “public interest” is often justified by the inevitable regenerative benefits of development projects.

And that should be good enough, should it not?  – when not a day goes by that the news is reminding us of our housing crisis, that our town centres are failing, of the social divides which exist within our local communities and, as we wait with bated breath, to see what long-term impacts Brexit will have on construction, funding and development, once that axe is finally swung.

Indeed, both the Secretary of State and Inspector agreed that the redevelopment of the Aylesbury Estate would provide social and economic benefits to the area.  However, it was concluded that these benefits were not so significant to justify the lawful interference with the Human Rights of those objecting to the Order.  This was largely based on the conclusion that existing leaseholders, without investing significant savings or taking out new mortgages, would not be able to afford to relocate into new properties provided by the redevelopment and therefore forced to move away from their local community.  He also reached the conclusion that not enough effort had been made to acquire the outstanding interests by agreement.

gentThe decision raises some real issues for the CPO industry.  It paints an uncomfortable picture of CPO being a tool of gentrification, driving residents and small businesses out of their communities on account of rising land values and rents; the polar opposite of what a CPO is intended to achieve, which should be to improve and restore vitality to a local area.

It also creates a real tension with the current reforms to CPO compensation, which essentially seeks to ensure that those subject to compulsory acquisition should not gain any benefit from any enhanced value created by the regeneration scheme underlying a CPO.

It raises the question of whether Council’s should wrestle back control from developers when seeking to engage with those affected by CPO.  Most CPOs are developer-led and their surveyors will be at the fore of seeking to negotiate acquisition of land by agreement, albeit with a duty of care to the Council.  This possibly creates the wrong perception that there is a lack of engagement by the Council.  Greater visibility of the Council promoting the CPO and a genuine strategy to engage will be important.

Whilst the decision is, in some respects, a breath of fresh air that reminds us the impact CPO and redevelopment can have on individuals and local communities must be given more careful consideration together with a thorough review of solutions which can be put in place to maintain the identity of the local community.  One does have to question how genuinely balanced the decision was when the majority of existing residents had raised no objection, the scheme was set to deliver over 800 new residential units and other benefits; yet the CPO failed on the back of only 8 outstanding objections.

Southwark Council has announced they will be judicially reviewing the decision; a sensible move given its ramifications.

Troubled waters – Equalities Duty and Alternative Sites Failings Fatal

bridgeThe public sector equality duty under Section 149 of the Equality Act 2010 (PSED) is playing an increasing role in planning decisions. In LDRA LTD & ORS v Secretary of State for Communities and Local Government & ORS [2016] EWHC 950 the High Court quashed an Inspector’s decision to grant permission on appeal for an onshore office and warehouse facility to serve offshore wind farm installations.  The authority had refused permission on the grounds of unacceptable amenity harm to adjacent residential occupiers.  The Inspector considered the proposals at an Inquiry and attended an accompanied site visit, during which access to the riverside for local people and the existence of alternative sites with lesser potential impacts were pointed out.  The claimants challenged under Section 288 of the TCPA 1990.

The High Court agreed that the Inspector had failed to give effect to the PSED when considering effects on access to the riverside area for disabled people.

Equalities duties

Section 149 requires authorities to have “due regard to the need” to “eliminate discrimination […] [and] advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not […]” when exercising functions. Disability is a relevant “protected characteristic”.  The key principles are that:

  • The duty is not a duty to achieve a result but to have due regard to the need to achieve the statutory goals in a way that is integral to the decision making process (R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809).
  • Decision makers must be properly informed and are under an inquisitorial duty, requiring rigorous enquiry and reporting (applying R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 94).

Process matters

Having concluded that only able-bodied people would have the “continuing opportunity to reach the riverside” near the development, the Inspector was held to have failed to discharge the PSED in the absence of: detailed consideration of the value of the existing amenity to disabled people, comparable alternatives, practical difficulties which disabled people and carers would experience and the loss of a resource (access to a car park) would not merely be less convenient, but may result in an inability to access the riverside at all.  The fact that the PSED issues had not been identified as a “main issue” in the appeal was irrelevant to the decision to quash.

Conflicting approaches

The Judge held that Section 31 Senior Courts Act 1981 – preventing a quashing order where it is “highly likely” the outcome would not have been substantially different had the PSED been applied – did not apply given that the PSED is concerned with process, not simply outcomes. This is presumably based on the public interest exception to Section 31(1) under Section 31(2B).  Contrast this with the Court of Appeal’s approach in West Berks accepting a retrospective Equalities Impact Assessment as ‘adequate and in good faith’ to be able to discharge the PSED because a different process “would not have led to a different conclusion“.

Alternative solutions

The Judge also held that the claimants had been substantially prejudiced by the Inspector’s failure to address an alternative site which may well have influenced the outcome. She rejected the suggestion that the Inspector was not required to absorb evidence during the site visit, holding that the purpose of the visit was to identify and view possible alternative sites.  Failing to take into account the identification of the alternative made during the site visit was a breach of natural justice/procedural fairness.

High Court allows relaxed view of needs on appeal

high courtThe High Court has adopted a flexible approach to dealing with ‘objectively assessed needs’ (OAN) on a planning appeal in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin). In considering an appeal against refusal of permission for housing, the Inspector had to decide whether the authority could demonstrate a 5 year supply of deliverable housing sites against OAN.  If not, NPPF policy recommends that restrictive local housing policies are supplanted by the presumption in favour of permission.

The Core Strategy included a ‘maximum’ housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a 5 year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin)).

The Inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under Section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). The High Court dismissed the challenge, on the basis that the upper/lower level figures provided a ‘context for assessing housing need’ and that nothing in the NPPF should prevent decision makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission“.

The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal Inspectors being diverted into a statistical “sojourn in a garden of delights” on OAN.  Care is needed, though:

  • It does not address the situation where reliance on OAN is required to ‘switch off’ restrictive housing policies and engage the NPPF presumption.
  • It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the Inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land.”
  • The maximum figure the Inspector used for the upper limit of the OAN ‘range’ in Dartford appears to have been derived from a historic Regional Spatial Strategy policy set by reference to policy-based environmental constraints.  It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such ‘policy on’ considerations (St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610).

Affordable snakes and ladders on small sites

The judgment in the battle of wills over the Government’s small sites affordable housing and Vacant Building Credit policies has concluded, for now, with the Government victorious in the Court of Appeal. This blog considers the practical impact of the Vacant Building Credit.  What are the wider implications of the judgment for affordable housing decisions and policies?

Policy on the hoof

cartoonThe process by which the policies were introduced was surprising, but not unlawful.  However, two elements of the judgment may prove controversial:

  • firstly, the acceptance of a retrospective Equalities Impact Assessment where complying with the Public Sector Equalities Duty when taking the decision where the assessment was ‘adequate and in good faith’ and original decision “would not have led to a different conclusion“;
  • secondly, that Ministers are not required to have regard to material considerations when making national planning policy given that it relies on the exercise of crown prerogative powers. This will seem obscure to those living outside the legal bubble.

Common sense still allowed

Policy is just policy. The judgment confirms that:

  • government, whether central or local, may state policy ‘rules’ absolutely, but
  • decision takers must consider them without treating them as absolute – their discretion to weigh things in the balance and do something different cannot be fettered by policy.

For applications, that means:

  • complying with the duties to consider all relevant issues and determine in accordance with the development plan unless there are reasons not to (Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning & Compulsory Purchase Act 2004);
  • local authorities are entitled to weigh the Government’s policy against their own plan policies, the demographic evidence on which they are based and any economic evidence on the viability of specific ‘small sites’.  There will inevitably be an upsurge in appeals as they do so, since applicants will generally expect the Government to follow its own policy on appeal;
  • where there are perfectly sound reasons for a Localist decision, there should be little scope for adverse costs awards.  The difference in weight to the national policy is simply a matter of planning judgment – which the Court of Appeal decision emphasises must be carried out diligently.

Making plans

Local Plan policies could still be promoted on the basis of evidence base and local circumstances which justify the LPA’s proposed thresholds. That will run the gauntlet at Examination in Public given the wider powers to intervene in the Plan-making process now available under the Housing and Planning Act 2016.

The reasoning given for the small sites policy in Government’s evidence (extracted at paragraph 53 of the judgment) provides clear scope for authorities to use evidence to show that their affordable housing policy thresholds are in line with the intended policy objective as long as requirements are:

  • viable, and
  • that contributions will be required at a time when they could not sensibly stall schemes (i.e. pre-occupation).

If local policies are supported by evidence that shows they would deliver Government’s stated intended outcome then they should survive Examination.