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Row of new houses

25/01/2017

Update: Legal challenge to the ministerial statement on housing land supply.

Background

On 12 December 2016 Gavin Barwell, the Minister of State for Housing,  Planning and Minister for London, made a written ministerial statement (“WMS”) clearly designed to change how the presumption of sustainable development is applied for those areas which have an up to date adopted Neighbourhood Plan.

 In brief, Barwell has set out that relevant policies for the supply of housing in an adopted  Neighbourhood Plan should not be deemed to be out of date under paragraph 49 of the NPPF where the following circumstances are in force at the time the decision is made:

  • the decision is made before 12 December 2018 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 LPA can demonstrate a 3 year supply of deliverable housing sites.

Barwell’s reasoning for this WMS was to ensure that up to date Neighbourhood Plans produced by local communities are not deemed out of date under paragraph 49 as a result of the LPA’s failings in providing a 5 year housing land supply.

To support this approach Barwell stated that recent analysis suggested Neighbourhood Plans which plan for housing have on average planned for approximately 10% more homes than the number for that area set out by the LPA. Barwell did not provide any evidence that the sites already allocated by Neighbourhood Plans which are the basis of this figure are deliverable in reality or have actually delivered new homes.

Practical consequences

This WMS is now to be taken into account as a material consideration in the determination of planning applications and appeals. It is clear that subject to the qualifications identified above, if a 3 year housing land supply could be demonstrated, all relevant policies for the supply of housing in a Neighbourhood Plan would be up to date and full weight attached to them in the planning balance.  The presumption in favour of sustainable development in the second limb of paragraph 14 of the NPPF would not apply. 

At that time there was uncertainty as to how the 3 year housing land supply should be calculated. There continues to be fears about the use of Neighbourhood Plans to control housing development where there are housing land supply issues.

Legal Challenge

Earlier this year we secured a copy of a pre-action protocol letter to the Secretary of State for Communities and Local Government.  18 claimants including Richborough Estates, Redrow Homes Limited and Linden Homes Limited are seeking to challenge the WMS.  A copy of the letter can be seen from the following link:

http://offlinehbpl.hbpl.co.uk/NewsAttachments/RLP/NP_WMS_legal_challenge.pdf

The WMS has been attacked on a number of grounds relating to: legitimate expectation that consultation would be undertaken prior to adoption of the WMS; the policy being illogical, irrational or Wednesbury unreasonable compared to the stated intention of the policy; the policy being predicated in part on evidence which is mistaken as to facts, irrational and Wednesbury unreasonable; the policy being irrational, perverse and Wednesbury unreasonable when set against Government policy (in the NPPF) to significantly boost the supply of housing; and the adoption being a breach of the Public Sector Equality Duty.

Some who have followed the WMS anticipated that the Secretary of State may immediately withdraw it but nothing could be further from the truth.  We understand that the Secretary of State will vigorously defend any challenge and in their response to the pre-action protocol letter has rejected all five grounds of challenge:

  • the objectives of boosting housing supply and supporting localism “are not seen to be in conflict with each other”;
  • the WMS “is a policy statement to highlight the importance of supporting local communities with a qualifying plan in place, whilst continue to support the delivery of housing”;
  • there is no legitimate expectation of consultation, adding that there is “no statutory duty to consult” and that other ministerial statements have been issued without prior consultation;
  • that a three-year housing land supply means three-year supply as against a five-year requirement”.  This is important.  If for example a local planning authority has an annual requirement of 2,000 houses and can show a 5 year supply of 6,000 dwellings, they will have a three-year land supply.  In addition, if 5,000 houses are delivered in years 4 and 5 and only 1,000 in years 1 to 3 they will still have a 3 year supply.

 It remains to be seen if the claimants decide to pursue the challenge and we will keep you informed of all developments. However, for the time being where an up to date Neighbourhood Plan exists and allocates land for housing, the onus on the local planning authority will be significantly reduced where there are housing land supply issues.  This will inevitably have an impact on the prospects of securing planning permission on sites in some instances and we are already seeing local planning authority decisions where permission which may well have been granted prior to the WMS are now being refused.

Please contact Paul Wootton at paul.wootton@howespercival.com if you would like to discuss further.