• Issue 32

  • Jan 2018

The Source

Judgment on Legal Challenge to Written Ministerial Statement

In December 2016, Gavin Barwell, the then Minister of State for Housing and Planning and for London, released a Written Ministerial Statement (WMS) on Neighbourhood Planning, declaring that relevant policies for the supply of housing in a neighbourhood plan should not be deemed out of date under NPPF paragraph 49 if the Local Planning Authority could demonstrate a three-year housing land supply, rather than five. This applied to those neighbourhood plans (NP) which had been part of the development plan for 2 years or less and made allocations.

In response to the WMS a number of developers, housebuilders and land promoters undertook joint judicial review proceedings based on the impact upon paragraphs 14 and 49 of the NPPF, the reliance of the research upon which the SoS based the changes, the lack of certainty, the confusion arising from the WMS, the incompatibility of the WMS with the NPPF’s desire to “boost significantly the supply of housing” and finally that there was a breach by the department due to a lack of public consultation before WMS effectively changed planning policy for housing. None of these grounds were upheld within the judgment.

Ground 1 concerned the unlawful change to NPPF paragraph 49 to read ‘3 years’ instead of ‘5 years’ in cases where a NP met the 3 WMS criteria. However, the Supreme Court Suffolk Coastal decision ensured that paragraph 49 changed from being focused on determining if individual policies were out of date, to a trigger for the application of the tilted balance. This in turn led to the Government updating the NPPF to clarify the meanings of the WMS. In essence if an LPA cannot demonstrate a five year housing land supply then, in line with paragraph 49, the tilted balance is engaged. The tilted balance is not changed by the WMS; instead, the WMS becomes a material consideration to be taken into account. Despite the WMS making it clear the circumstances where the Secretary of State (SoS) considers significant weight should be given to the NP, the weight accorded is a matter for the decision maker. This was reinforced by the judgment’s declaration that both the WMS and NPPF are policies rather than rules or laws. Situations may therefore arise where their application is either afforded less weight or is adapted.

Ground 2 alleged that the WMS was based on inaccurate research, when the SoS claimed that NPs resulted in 10% more housing being allocated than in areas without NPs. The Judge determined that the SoS’s view was informed by a rational decision based on the evidence available, despite the evidence’s recognised limitations.

Ground 3 concerned the uncertainty of the WMS’s meaning when referring to the three year land supply. The Judge found that the reference was in fact clear, relating to a 3 year supply against the LPAs 5 year housing requirement, this has subsequently been set out in the PPG and the ground was not upheld.

In response to ground 4 that the WMS was not allowing a significant boost to housing supply in line with NPPF, the judgment found that the Framework is to be taken as a whole and that it is for the decision maker to balance the interests and objects of the policy in order to arrive at the most appropriate decision.

With regards to ground 5 the Judge rejected the claim that the Government had given assurance that a WMS on national housing policy would undergo consultation before being issued and the Judge was “unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS.”