Neighbourhood plans bolstered

Planning 146x219A group of developers sought to challenge through the courts a written ministerial statement aimed at supporting neighbourhood plans. Richard Harwood QC analyses the outcome.

The High Court has dismissed the challenge by developers to the Planning Minister’s Written Ministerial Statement which said the neighbourhood plans would not be out of date where they allocated sites for housing and there was at least a three year housing land supply: R(Richborough Estates Ltd) v Secretary of State for Communities and Local Government [2018] EWHC 33 (Admin).

On 16th December 2016 the then Housing and Planning Minister, Gavin Barwell, issued a Written Ministerial Statement intended to support the role of neighbourhood plans. Concerned that too often local communities had laboured to prepare plans which were then been disregarded by Inspectors because the district did not have a five year housing land supply, he said:

“relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made:

  • This written ministerial statement is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;
  • the neighbourhood plan allocates sites for housing; and
  • the local planning authority can demonstrate a three-year supply of deliverable housing sites.”

The context for the legal issues in the case is the casual approach to the preparation of national planning policy. In Hopkins Homes Ltd v Secretary of State for Communities and Local Government Lord Carnwath JSC held that the Minister’s powers to prepare planning policy ‘derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system’: [2017] UKSC 37, [2017] 1 WLR 1865. Leaving aside national policy statements for certain major infrastructure projects and waste planning, there is no requirement as to the form, subject matter or process of national policy in England. The same point holds reasonably well in other UK nations. Whilst these have some national level statutory policy documents, such as the National Development Framework for Wales or the Regional Development Strategy in Northern Ireland, other planning policies are prepared in whatever way Ministers wish. In England national planning policy includes the National Planning Policy Framework, the Planning Practice Guidance, and various statements which have been published or given to Parliament.

Richborough and their fellow developers challenged what was considered, the content of the policy and the absence of consultation on it.

On the extent of relevant considerations, there is a wide degree of judgment as to precisely what to consider and the matters raised by the developers were all mentioned by the Minister in one way or another [para 35].

A further criticism advanced was that the WMS was inconsistent with the later interpretation of the NPPF by the Supreme Court in Hopkins Homes. The Court’s suggestion that Ministers cannot be criticised for not anticipating that the interpretation of a policy would change [36] is too generous: a subsequent judicial decision is saying what the policy has always meant. However it is difficult to see how the Supreme Court’s narrow interpretation of policies for the supply of housing could affect the sense of the WMS in any event.

The developers criticised the requirement for a three year housing land supply as unclear as to the period over which it was calculated. Mr Justice Dove rightly said that it meant three years in the next five years. That is the only interpretation which could achieve the WMS’s aim of giving more force to neighbourhood plans. Asking whether there is a three year supply over the next three years is no less onerous than seeking a five year supply in five years.

Another ground raised was the evidence base for suggesting that neighbourhood plans were increasing the housing supply. However the limitations of the analysis before Ministers were readily apparent in the documents themselves and recognised in the Ministerial decision [53-57].

The developers contended that it was irrational to make the WMS when a key objective of the NPPF was to ‘boost significantly the supply of housing’. However, as the Court observed, that was only one of numerous priorities in the policy [61]. It might also be thought that a credible neighbourhood plan regime, which is not being regularly overridden in planning appeals, will itself help to significantly increase housing supply.

Finally the developers argued that there was a legitimate expectation that the Minister would consult the house building industry before changing policy (or at least planning policy) for housing. That ran into a few problems. Firstly any duty to consult would have to be to the public at large. A consultation on housing with only housebuilders would be spectacularly one-sided. There is also no obvious reason why there should be consultation on planning policies affecting housing, but not on, say, hydraulic fracturing [68 to 70]. The greater problem was that there was no promise from government to consult on changes to policy and practice threw up examples of changes to housing policy in particular which had not been the subject of consultation. On the evidence there had not been a consistent practice of consultation on these changes and so it was not implicit that consultation would take place. No legitimate expectation therefore arose.

Richard Harwood QC specialises in planning, environment and public law at 39 Essex Chambers. He is the co-author, with Victoria Hutton, of Planning Policy which is to be published by Bloomsbury Professional on 25 January.