The High Court has dismissed a claim brought by a consortium of 25 developers to challenge the Secretary of State’s decision to issue a Written Ministerial Statement (WMS) and amend associated National Planning Practice Guidance (NPPG) in relation to national housing and neighbourhood planning policy.
On 12th December 2016, Gavin Barwell (the then Minister for Housing and Planning) issued a WMS which provided that neighbourhood plan polices should not be considered ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework (“the NPPF”) in the following circumstances:-
- The WMS was more than 2 years old OR the neighbourhood plan has been part of the development plan for two years or less AND
- The neighbourhood allocates sites for housing AND
- The local planning authority can demonstrate a 3 year supply of deliverable housing sites.
The rationale behind this was to ensure that neighbourhood plans are not undermined by a local planning authority’s inability to demonstrate a 5 year housing land supply of deliverable housing sites. The WMS advised that ‘it is right to take action now to protect communities who have worked hard to produce their neighbourhood plan and find the housing supply policies are deemed to be out-of-date through no fault of their own.’
The claim was made on the basis that:-
- The WMS is based on an error of law in terms of the interpretation of paragraph 14 and 49 of the NPPF and amends paragraph 49 without explicitly doing so.
- The Secretary of State’s reliance on 2015 and 2016 research was based upon errors of fact and inadequate evidence.
- The WMS is invalid for uncertainly. It relies on an assessment of 3 year housing land supply but does not set out the basis for performing the calculation.
- The NPPF intends to boost significantly the supply of housing whilst the WMS seeks to protect NDP areas from windfall development, which is irrational.
- There was a legitimate expectation that there would be public consultation before planning policy was changed by the WMS and this was breached by the failure to do so in this case.
On 12th January, Dove J dismissed the claim on all 5 grounds, the reasons for which are summarised below:-
- The WMS faithfully reflected the interpretation of paragraphs 14 and 49 of the NPPF at that time (e.g. the Court of Appeal interpretation of the Hopkins case, not the Supreme Court’s). The emergence of a different interpretation did not render the policy unlawful and liable for quashing.
- The WMS and subsequent amendments to the NPPG were a change to national policy in relation to housing applications in areas with recently adopted neighbourhood development plans. There is nothing unlawful about changing policy.
- The reference to a 3 year housing land supply is clear. It means 3 years as measured against the LPA’s five year requirements.
- The NPPF clearly promotes housing as a key priority but not one that must be pursued at all costs. Objectives in the NPPF, from time to time, pull in different directions. The policy maker will have to balance the interests and objectives on the policy (as does the decision making in planning applications) to reach a view as to the appropriate policy to adopt. There was no irrationality in the defendant’s decision.
- The evidence does not establish an unequivocal assurance on the basis of practice, that a WMS in relation to national planning policy for housing would not be issued without prior consultation. This has been done on at least two previous occasions. There is no legitimate expectation.
The full judgment can be obtained here.
The Claimants are no doubt seeking legal advice as to the merits of an appeal to the Court of Appeal. However with the revised NPPF expected in the spring, I suspect these proceedings may be overtaken by other events. We await the revised NPPF with bated breath.
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