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15th December, 2016 by Jamie Childs
Since its introduction in March 2012, paragraph 49 of the National Planning Policy Framework (“NPPF”) has meant that relevant local development plan policies for the supply of housing should not be considered up-to-date if the local planning authority (“LPA”) in question cannot demonstrate a five-year supply of deliverable housing sites.
When interpreted in conjunction with paragraph 14 of the NPPF, in the absence of a five-year housing land supply, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits of a proposed development assessed against the NPPF as a whole (unless specific policies in the NPPF restrict such development).
In practice, this presumption in favour of sustainable development has led to significant opportunities for promoters, developers and landowners to secure planning permission on sites which are not allocated for development in local planning policy.
The Localism Act 2011 made it clear that adopted Neighbourhood Plans are part of the development plan and further measures clarifying the position of Neighbourhood Plans are set out in the recently published Neighbourhood Planning Bill.
The new written ministerial statement
On 12 December 2016 Gavin Barwell, the Minister of State for Housing & Planning and Minister for London, made a written ministerial statement which may change how the presumption of sustainable development is now applied for in those areas which have an 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set out that relevant policies for the supply of housing in an adopted Neighbourhood Plan, should not be deemed to be out of date under paragraph 49 of the NPPF where the following circumstances are in force at the time the decision is made:
At present, it appears that this policy (or a revision of it) shall be taken through to the much anticipated White Paper on Housing expected in early 2017. However, it is made clear that the statement “...applies to decision made on planning applications and appeals from today”. It is well-established law that a written ministerial statement is a material planning consideration.
Barwell’s reasoning for this written ministerial statement is to ensure that up to date Neighbourhood Plans produced by local communities are not deemed out of date under paragraph 49 as a result of the LPA’s failings in providing a five-year housing land supply.
To support this approach Barwell states that recent analysis suggests 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. Interestingly, Barwell does 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.
This written ministerial statement is at the centre of one of the key struggles in planning policy at present: the potential conflict between the need to streamline the planning system to deliver housing and the Government’s goal to allow local communities to influence decision making.
This written ministerial statement should now be taken into account as a material consideration in the determination of planning applications and appeals.
It is clear to see that calculation of the 3-year housing land supply is going to be open to argument and challenge. Whilst the housing land requirement should be straightforward, the base for establishing the available supply will not be. As it stands, most LPAs are able to provide information as to the housing land available in the next 5 years to then compare with the housing requirements for that 5-year period. However, LPAs may wish to use the same numbers to simply prorate its 3-year housing land supply rather than actually assessing whether the units within the 5-year supply will come forward within 3 years. By way of example, if an LPA has a 5-year housing requirement of 1,500 units (300 units per year) but only a 5-year supply of 1,400. This would indicate a supply of 4.6 years and therefore pass the 3 years identified by the written ministerial statement. However, if it transpired that of the 1,400 unit supply within the 5 years, 800 units were anticipated to be delivered in years 4 and 5, this would mean that only 600 units were deliverable within the next 3 years against a requirement of 900 units. In those circumstances, the LPA would not have a 3-year supply of housing land. The reference in the written ministerial statement to “deliverable” may necessarily indicate that the Government expects the calculation to be in the context of the 5-year supply but, on the face of it, this would appear to be an avenue of attack.
Although it must be recognised that these provisions are only applicable to those Neighbourhood Plans which do allocate sites for housing this is generally not good news for those looking to bring forward development on unallocated sites using paragraphs 49 and 14 of the NPPF in areas with adopted Neighbourhood Plans. In such a scenario, it appears an increase in the scrutiny of the deliverability of housing sites is likely. It is also the case that relevant policies for the supply of housing in adopted Neighbourhood Plans will not be considered out of date and so full weight would be attached to them in the required planning balancing exercise. When considered with the implications of the judgment in the recent case of East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another  EWHC 2973 (Admin), it would appear that it is going to be even more challenging to secure residential development that is inconsistent with a Neighbourhood Plan.
However, this written ministerial statement may be welcomed by those with an interest in areas where no adopted Neighbourhood Plan is present and there is no five-year supply of housing land. There may be a shift to such areas to deliver unallocated sites from areas where the LPA has a three-year housing land supply but there is an adopted Neighbourhood Plan which allocates sites for housing.
It can be anticipated that communities will increase the use of Neighbourhood Plans to seek to control housing development where there are real challenges in demonstrating five-year housing land supply. In practice, we would strongly advise landowners and prospective developers of sites in areas where Neighbourhood Plans are being progressed to engage with communities at an early stage in their neighbourhood planning process to attempt to ensure their site is allocated. When this is not possible, it appears that an increase in legal challenges to the adoption of Neighbourhood Plans is inevitable.
In certain circumstances the written ministerial statement will also lead to the curious situation where the policies in a LPA’s development plan are out of date but the policies in a Neighbourhood Plan are not and should, therefore, continue to be given full weight. It will be interesting to see how decision makers grapple with this, especially in the context of paragraph 14 of the NPPF. There are numerous appeal decisions where decision makers have concluded that policies in very recently adopted development plan documents are out of date because of the lack of five-year housing land supply. There is no real logic to recently adopted Neighbourhood Plans being given special status. This increases the importance of scrutinising the policies in draft Neighbourhood Plans at an early stage.