Legal Viewpoint: Relief for neighbourhood plans may be temporary

Last month, the judgment on the High Court challenge to the government's written ministerial statement on neighbourhood planning was handed down.

Lucy McDonnell
Lucy McDonnell

The statement, issued by planning minister Gavin Barwell in December 2016, provided that, for the ensuing two-year period, housing supply policies in neighbourhood development plans (NDPs) would not be deemed out of date where the plan is less than two years old, it allocates sites for housing and the local planning authority can demonstrate a three-year housing land supply, rather than the usual five years.

The statement referred to the importance of local people having more say on planning in their area and the frustration neighbourhood planning groups experience when plans are considered out of date because their local planning authority cannot show a district-wide five-year supply. On the other hand, evidence had been put forward by the housebuilding industry that NDPs "are being used to frustrate development".

The group of housebuilders which brought the challenge had an early success when, following a disclosure application, Mr Justice Gilbart ruled that the government’s claim that NDPs on average plan for ten per cent more homes misdescribed the situation. However, last month’s substantive judgment properly takes a technical approach in dismissing each of their grounds for challenge.

With the grounds largely addressing procedural matters, the scope for a controversial judgment was limited to the argument that, in light of the National Planning Policy Framework (NPPF) aim "to boost significantly the supply of housing", the statement was irrational and would frustrate the positive planning required. While offering an interesting discussion on these matters, Mr Justice Dove succinctly concluded that the NPPF is to be taken as a whole, and it is for the decision-maker or policy-maker to balance competing demands.

So Barwell’s statement remains in place. It seems likely to be reiterated in the next version of the NPPF. As we approach its second anniversary and adopted NDPs mature, neighbourhood groups and developers will be watching closely to see if the two-year period is extended. In any event, as Mr Justice Dove identified, the NPPF may itself continue to pull in different directions. In light of increased housing need, changes may reduce councils’ housing land supply below three years, thus removing the statement’s protection for affected NDPs.

Richborough Estates and Others v Secretary of State for Housing, Communities and Local Government; Date: 12 January 2018; Ref: [2018] EWHC 33 (Admin)

Lucy McDonnell is an associate at Dentons


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