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Neighbourhood planning: Legal challenge to Written Ministerial Statement on three year housing land supply is dismissed

19th January, 2018 by Chris May , Jamie Childs , Jay Mehta

On 12 December 2016 the Government made a Written Ministerial Statement (“WMS”) which set out that relevant policies for the supply of housing in a neighbourhood plan should not be deemed “out of date” under paragraph 49 of the National Planning Policy Framework (“Framework”) where all of the following apply:

the WMS 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 LPA can demonstrate a three-year supply of deliverable housing sites.

The WMS should be seen in light of the recent amendments introduced by the Neighbourhood Planning Act 2017 which require a local planning authority to have regard to a “post-examination” draft neighbourhood development plan in their decisions on planning applications so far as this is material to the application (in section 70(2)(aza). A post examination draft neighbourhood plan will not have been adopted for the purposes of the WMS requirements but may be given weight in decisions on planning applications and it may now be argued that these should be given greater weight given that as soon as they are formally adopted the WMS may apply.

Following the Supreme Court decision in Hopkins Homes (see our article here), the Government updated the National Planning Practice Guidance (“NPPG”) in relation to the WMS

Several developers launched a legal challenge to the Government’s decision to make the WMS. In short, that decision has now been dismissed by the High Court and the NPPG (see link above) remains in full force.

We summarise the key findings and implications of the High Court’s decision below. This decision shall remain valid if and until such time as the case is successfully appealed or the provisions of the NPPG are updated, perhaps following the impending revisions to the Framework:

The Government is legally allowed to make such written ministerial statements provided that these do not frustrate the operation of planning legislation, introduce matters which are not planning considerations at all or are irrational. This follows the decision in the case of West Berkshire which found that written ministerial statements were simply guidance or material considerations, and did not therefore automatically circumvent or trump legislation or development plan documents.
The High Court found that the Government’s actions were explained by the Government’s view that it was right to take action to protect communities who have produced a neighbourhood plan who might find that relevant policies within it were deemed “out of date” through no fault of their own.
The Supreme Court’s decision in Hopkins Homes does not render the WMS unlawful, particularly when read together with the amended NPPG.
When calculating the three-year housing supply required to satisfy the WMS this should be taken as against a local planning authority’s five year housing land supply. This is not a “free-standing” calculation of three year housing supply but should be considered on the basis of how well the local planning authority is performing as against their requirement to demonstrate a five year housing land supply calculated in the usual way under paragraphs 47-49 of the Framework. This has particular implications for developments which are due to come forward, or deliver higher dwelling numbers, in years four or five of a five year housing land supply calculation which could have potentially been removed from a “free-standing” calculation of a three year housing supply. This now cannot be done and it shall be easier for a three year housing supply to be identified.
In summary, the following are the effects of the WMS being upheld where a neighbourhood plan has been part of the development plan for 2 years or less and allocates sites for housing. When considering these consequences it should always be remembered that as a matter of law decisions on planning applications must be taken in accordance with the development plan unless material considerations (such as the Framework, NPPG and written ministerial statements) indicate otherwise:

Less than a three year housing supply can be demonstrated by the local planning authority: The tilted balance in paragraph 14 of the Framework is engaged and the WMS does not apply.
More than a three year housing supply but less than a five year housing supply can be demonstrated: The tilted balance in paragraph 14 of the Framework is engaged but in dealing with this balance“significant weight” is to be given to the relevant neighbourhood plan notwithstanding the lack of five year housing supply. The weight to be given to the neighbourhood plan is a matter for the decision maker and, usefully, the Court acknowledged that although the WMS does not specify a minimum number of housing allocations if the allocations are “unrealistically small” then that can be taken into account in deciding the weight to be given to the neighbourhood plan.
A five year housing land supply can be demonstrated: The tilted balance in paragraph 14 does not apply unless the development plan is otherwise absent, silent or relevant policies are otherwise out-of-date (perhaps through the operation of paragraph 215 of the Framework).

Many local planning authorities are able to demonstrate a three year housing land supply but struggle to demonstrate a five year housing land supply. In such cases, the upholding of the WMS is unhelpful where there is a recently adopted neighbourhood plan which allocates land for housing. This creates a significant hurdle in trying to secure planning permission in conflict with the neighbourhood plan, as “significant” weight shall need to be given to the neighbourhood plan. It will therefore be necessary for applicants to seek to argue that less weight should be attached to the neighbourhood plan by, for example, demonstrating: inconsistency with the policies in the Framework (under paragraph 215); or because the sites that are allocated are undeliverable or unviable.
In addition, it shall be even more important to bolster the other planning benefits of a scheme to weigh in favour of approval when the tilted balance in paragraph 14 of the Framework is engaged.
It remains crucial for developers, landowners and promoters to engage with the neighbourhood planning process to maximise the prospect of their sites being allocated in a neighbourhood plan and therefore avoiding the need for the sort of arguments summarised above.

Please contact a member of the Howes Percival Planning Team if you would like to discuss this case or the issues it raises in more detail.

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