LEGAL | DALEE KAUR AND RACHEL HOLT
Three year housing land supply Is this decision introducing planning policy by the back door? – ask Dalee Kaur and Rachel Holt
Dalee Kaur above is legal director and Rachel Holt an associate at DLA Piper
Richborough Estates Ltd & 24 Ors v Secretary of State for Housing, Communities & Local Government  EWHC 33 (Admin) On 12 January 2018, the High Court dismissed a claim brought by a consortium of 25 developers challenging the legality of the Secretary of State's written ministerial statement (the “Statement”) concerning national planning policy on housing and neighbourhood planning, issued 12 December 2016. Paragraph 49 of the NPPF provides that, where a local planning authority is unable to demonstrate a five-year housing land supply of deliverable housing sites, then relevant policies for the supply of housing in the development plan will be deemed outof-date and therefore awarded only limited weight. In 2016, the Court of Appeal interpreted "relevant policies" broadly to include any plan policy whose effect is to influence the supply of housing land. This was subsequently overturned by the Supreme Court in May 2017, who took a narrow interpretation to include only those policies concerned with the numbers and distribution of new housing. Concerned that neighbourhood development plans could be unfairly undermined by the failure of local authorities to provide adequate housing land supply, the Secretary of State carved out an exception within paragraph 49 of the NPPF by issuing the Statement. The Statement provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be "out of date" provided all of the following apply at the time the decision is made: • the Statement is less than 2 years old, or the neighbourhood plan has been part of the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 Claimants asserted among other things that the impact of the Statement was effectively to reduce the relevant housing land supply requirement for neighbourhood plan areas from 5 years to 3 years and that this amounted to a change in policy without consultation. Mr Justice Dove found against the Claimants on all of their five grounds and dismissed the challenge on the following basis. The legislative framework does not set out criteria for assessing published planning policy, nor does specify considerations for the Secretary of State when making national policy. As long as the policy does not frustrate the operation of planning legislation it is not irrational and the Secretary of State, as policy maker, may determine what is or is not a material consideration. When the Statement was published it had reflected the interpretation of paragraphs 14 and 49 of the Court of Appeal in Hopkins Homes, but the development of the interpretation of
these paragraphs in the Supreme Court judgment did not make the Statement unlawful. In any case, the Statement remains consistent in the light of the Supreme Court's decision as it augments rather than contradicts the judgment: where there is no five-year supply, then paragraph 49 of the NPPF applies, but where there is a "more-than-three-but-less-than-five-year" supply and the other criteria apply, then a balance must be struck between paragraphs 14 and 49 and significant weight can be given to the neighbourhood development plan. The Secretary of State was not acting irrationally by basing its analysis on a wider variety of plans instead of solely the limited number of neighbourhood development plans available at the time. The policies set out in the Statement were clear, and so could not be invalid for uncertainty. In any case, the Supreme Court had clarified their meaning in Hopkins Homes, as set out in the Court's findings in respect of Ground 1 above. The increase of the supply of homes, whilst a key priority under the NPPF is not a freestanding objective to be pursued at all costs, independent of all other objectives under the NPPF. The Secretary of State, as policy maker, must balance the objectives of the NPPF as a whole and had done so when publishing the Statement. The claim that past practice when publishing changes to housing policy meant that there was a legitimate expectation for consultation of the house building industry was framed extremely narrowly. House builders are not the only parties interested in changes to national planning policy. Local planning authorities, amenity groups and the wider public may all have views on potential changes. Furthermore, there is no evidence of "unequivocal assurance" that written ministerial statements on national housing policy require consultation before publication and there is no statutory basis for such consultation.
What does this mean for planning policy? A number of examples of planning policy introduced by written ministerial statement and without consultation were considered by the Court in Richborough. Such policy changes have not been limited to housing, but include changes to national retail planning, onshore wind development and exploratory apparatus for fracking. The effect of written ministerial statements can be to introduce far reaching changes to the planning system effectively overnight. This provides an interesting contrast to the changes to the NPPF, which have been subject to multiple consultations. Written ministerial statements and the associated NPPG amendments are therefore often controversial as they can be perceived as a back door means for the Government to introduce or amend planning policy. Whilst the use of written ministerial statements in this way >>>
Issue 105 April–June 2018
PLANNING IN LONDON 105 April 2018