A Written Ministerial Statement (WMS) has resulted in major changes to the weight that is attached to Neighbourhood Plans, the question of housing supply and what developers must now take into account when preparing a planning application and any potential challenge to one for housing that has been refused planning permission.
While most people were busily buying presents, and planning festive celebrations, a WMS emerged from the Department for Communities and Local Government (DCLG) that changed the importance of many Neighbourhood Plans.
What it means
The WMS effectively changed the emphasis of para 49 (NPPF) and the requirement for local planning authorities (LPAs) to demonstrate a five-year deliverable housing supply, and the emphasis attached to the presumption in favour of sustainable development.
Before 12 December 2016 – the date of the statement – the housing policies of a Neighbourhood Plan would have been deemed out of date if the LPA was unable to demonstrate a five-year supply of housing land. This had put several Neighbourhood Plans in jeopardy as it is estimated that around a quarter of UK councils can only demonstrate a three-year housing supply.
The WMS essentially states that policies for the supply of housing in an adopted Neighbourhood Plan should not be deemed to be out of date, where the following circumstances apply:
- The decision is made before 12 December 2018 or the Neighbourhood Plan has been part of the development plan for 2 years or less;
- The Neighbourhood Plan allocated site for housing; and
- The LPA can demonstrate a three year supply of deliverable housing sites.
Cause and effect
This change in policy could have a significant effect on many upcoming housing applications and appeals, and has already resulted in various planning appeals being dismissed. For instance, the area covered by Mid Sussex District Council is almost entirely encompassed by Neighbourhood Plans – and developers were already challenging whether there was indeed a five-year housing supply.
In fact, what this WMS does do is to help LPAs by lowering the bar by which they have been judged for so long.
Gavin Barwell, Minister of State for Housing and Planning, also stated that the government would give communities that had presented their Neighbourhood Plans prior to the statement an opportunity to review their plans.
One must bear in mind that the method for calculating a 5 year housing land supply has been debated for several years and been subject to case law, meaning it is perfectly reasonable to assume the same will now apply where the existence of a 3 year supply is to be debated. For instance, one might question whether a LPA should simply prorate the requirement for and supply of housing land for the next 5 years over a three year period.
But this would not take account of a situation where the majority of housing was expected to be delivered in years 4 and 5, and such a situation may end up meaning there is not even a three year supply of housing.
Unsurprisingly the WMS is set to be challenged – 18 claimants have sent a judicial review pre-action protocol letter to DCLG. Read the letter here. The government was set a date by which to respond, however, following its request for a one week extension, this was subsequently put back until 20 January 2017. This is presumed to mean that a government response will be forthcoming, although we wait with bated breath whether it relates to a backtrack or a ‘come and fight me’ salvo.
An article has just been published on the Planning Resource website here. The website is subscription only, so we cannot publish the full article. However, in summary, the main points are as follows:
- The Government rejects the claimants’ initial grounds of challenge;
- The Government’s legal department insists that there is no conflict between the objectives of boosting housing supply and the support for localism;
- It also counters the suggestion that the WMS should be subject to consultation, arguing that there is “no statutory duty to consult” and there is no precedent for all previous WMS’ to be subject to consultation;
- The legal department’s response does however infer the method for calculating a three-year housing land supply, where it states: “So if the annual requirement is 500 houses, and the local authority can show a supply of 1,500 dwellings over the next five years, they will have a three-year land supply.”
In light of the Government’s response, the next step in the legal process is for the claimants to formally move the legal challenge.
Watch this space!
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