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Member Briefing: Potential judicial review of written ministerial statement regarding neighbourhood plans and 5 year housing land supply

Date: 05/01/17

Potential judicial review of written ministerial statement regarding neighbourhood plans and 5 year housing land supply


Dear HBF Member 

You may have heard about, or been approached to join, a potential legal challenge against the Secretary of State over his Written Ministerial Statement (WMS) of 12 December 2016 seeking to strengthen the role of neighbourhood plans. 

The WMS essentially states that where a neighbourhood plan which allocates sites for housing has been adopted within the past two years of when the decision on a planning application is made, the policies of the neighbourhood plan will be considered as being up to date if the Local Planning Authority can demonstrate a 3 year supply of land for housing. This new position is contrary to paragraph 49 of the National Planning Policy Framework (NPPF) which states that “relevant policies for the supply of housing [which would include those in an adopted neighbourhood plan] should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites”.    

The basis of the potential legal challenge to the WMS is based on four grounds: 

  1. That there was no consultation regarding this change of policy as contained within the NPPF. Through previous practice, such changes to national planning policy are subject to widespread consultation;
  2. That the policy is illogical in that it is not consistent with the government’s other policies of ensuring that plans are kept up to date through the use of the requirement to maintain a five year supply of land for housing. This relies upon the bringing forward of windfall sites that are not allocated in either local plans or neighbourhood plans;
  3. The policy relies on the belief that neighbourhood plans that are in force “have, on average, planned for approximately 10% more homes than the number for that area set out by the relevant local planning authority”. There is no up to date, published evidence that this statement is true;    
  4. The new policy is irrational and inconsistent with the government’s stated intention to “significantly boost the supply of housing” stated in paragraph 47 of the NPPF given that a significant number of dwellings are developed over and above those sites allocated in plans through windfall sites; and
  5. The policy breaches the Public Sector Equality Duty since it will exacerbate the housing crisis, particularly with regard to the adverse impact on young people gaining access to the housing market.  

The challenge was initiated by Richborough Estates but has a number of HBF members signed up as co-claimants. In effect it has now become a “class action” and the legal team pursuing the claim are seeking as many claimants as possible to sign up to the action. The lead contact is Stuart Andrews of Eversheds but the challenge would be fronted by Christopher Young, a Barrister from No5 Chambers in Birmingham. Stuart can be contacted at Tel: 020 7919 0670. 

The impact of the WMS is immediate, both in its application by decision makers (it came into force immediately on the 12th December) and on those developers who are currently challenging a decision to refuse planning permission through S78 appeals based on an argument that paragraph 49 applies and thus the presumption in favour of sustainable development set out in paragraph 14 of the NPPF should be applied. Of course, the new test only applies to sites covered by an adopted neighbourhood plan. While there are currently around 230 adopted neighbourhood plans, a further 40 have passed a referendum so are close to adoption, 50 have passed examination and are awaiting a referendum with a further 120 HAVE BEEN submitted for examination. An additional 175 neighbourhoods are currently known to be actively pursuing a plan. 

HBF has considered very carefully whether to join the action but we have concluded that we can best serve the membership by maintaining an independent position and offering our services to government as a critical friend in this situation. The pre-action protocol letter to the Secretary of State gives him until the 13th January to provide additional information sought by the Claimants and in that time we will seek to discuss the problems and consequences of the WMS with the SoS as part of our liaison over both the forthcoming Housing White Paper and the Neighbourhood Planning Bill.   

We are, therefore, leaving it to HBF members themselves to decide whether to join the action (thereby sharing in the legal costs) based on our summary of the situation set out above. If you wish to add your name to the list of Claimants or discuss the situation further please contact Stuart Andrews at Eversheds.