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Neighbourhood Planning Will they learn? - Minister's instant planning policies challenged

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Neighbourhood Planning | February 2017

Neighbourhood Planning Will they learn? - Minister's "instant" planning policies challenged “We learn from history that we learn nothing from history” George Bernard Shaw History is repeating itself! Five years ago, Eric Pickles, then Secretary of State for Communities and Local Government, unilaterally abolished Regional Spatial Plans. This action was challenged through the Courts. History now seems to be repeating itself, the issue now being the benchmark for deciding whether a Neighbourhood Plan is (or is not) “out of date”.

Neil Bucknell Partner | Real Estate neil.bucknell@laytons.com +44 (0)1483 407 000

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Neighbourhood Planning | March 2017

On 12 December last year, Gavin Barwell the Minister of State for Housing and Planning and the Minister for London made a written ministerial statement. After claiming that Neighbourhood Plans have on average increased the number of proposed homes by approximately 10% compared to the numbers previously proposed by the local planning authority, he has declared unilaterally a test for whether a Neighbourhood Plan is up to date, by reference to the housing supply in the area.

As he pointed out, paragraph 49 of the National Planning Policy Framework (NPPF) states that the local planning authority cannot demonstrate a 5 year supply of deliverable housing sites, its housing delivery policies should not be considered up to date. What test therefore would be applied to Neighbourhood Plans? The answer is that a Neighbourhood Plan will not be deemed out of date if it

Sector

complies with all of the following:

Construction Land & Planning

a.

it is either less than 2 years from the date of this statement, or the relevant Neighbourhood Plan has been part of the development plan for 2 years or less

b. the plan allocates sites for housing

Experience Real Estate

c.

the local planning authority can demonstrate a 3 year supply of deliverable housing sites

The statement was to have immediate effect.

No explanation was given, nor any cogent supporting

Experience

evidence or information supplied, explaining why in the area

Planning & Environment

of a local planning authority that has failed to comply with the test in paragraph 49 of the NPPF, its Neighbourhood Plans will nonetheless be upheld if it can still demonstrate 3 years supply.

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Neighbourhood Planning | March 2017

On 30 December, a pre-action protocol letter (effectively, a

investigation of the performance of neighbourhood planning

letter inviting the party to whom it is addressed to take an

in delivering housing, carried out in 2015, could mostly find

action to avoid litigation) was delivered to the Minister in

only Neighbourhood Plans where there were no relevant local

anticipation of judicial review of the statement. It was lodged

plans to use as a benchmark against which any increased

on behalf of 18 claimants, including a land promoter, two

delivery could be measured. The letter goes on to point

national listed housebuilders, and a number of other regional

out that the statement could indeed be counterproductive,

and local developers and other businesses involved in

and go against the Government’s declared policy of

residential development. It sets out a number of complaints.

boosting housing supplies. Finally (although presumably

It points out that there has been no proper consultation

of limited interest to most commentators and the house

although the statement purports to amend paragraph 49

building industry in particular) it was also pointed out that

of the NPPF, which was subject to considerable consultation

the statement was not accompanied by a Equality Impact

before it was promulgated. It notes that the 5 year supply of

Assessment as required by Section 149 of the Equality Act

housing land is a long-established national policy benchmark

2010.

and forms the basis of the policy and practice, having been recognised over the years as an appropriate way of measuring

The letter invited the Government to withdraw the statement

housing supply having regards to the delays in the planning

within 14 days. No such withdrawal has occurred, and the

process, from the point where sites are identified, followed

application for judicial review has been made and we await

by the grant of an outline planning permission, discharging

the next development with interest.

conditions, constructing enabling infrastructure and starting work in earnest to deliver the first completion. The letter

Once again, the Planning Minister finds himself being taken

points out that potentially there could be a perverse result –

to Court for making a policy “on the hoof” without proper

demonstrating a 3 year housing supply may in fact be more

consultation, or properly considering its indications. Will they

difficult than a 5 year housing supply, so this might undermine

ever learn?

(rather than reinforce) Neighbourhood Plans. The evidence is challenged, notably because the only available published

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