Planning matters

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On a dark December evening in Manchester, I delivered a presentation on ‘A Practitioner’s Perspective on the Neighbourhood Planning Bill’, concluding my presentation with a quip about five year housing land supply. Little did I know that some 200 miles away, Gavin Barwell (Minister for Housing and Planning) was addressing the same issue head-on, in a somewhat controversial ministerial statement to the House of Commons that took immediate effect. In his Statement, the Minister indicated that giving people more control over development in their local area is helping to boost housing supply but that communities are often frustrated that their neighbourhood plan is being undermined by their Council’s inability to maintain a five year housing land supply across the borough / district area. In order to build on the proposals to strengthen neighbourhood planning through the Bill, the Minister made it clear that where communities plan for housing in their area in a neighbourhood plan, those plans should not be deemed out-of-date unless there is a significant lack of housing land supply in the wider local authority area. He proposes that relevant policies for the supply of housing in a neighbourhood plan that is part of the development plan should not be deemed ‘out of date’ where all of the following circumstances arise at the time the decision is made: ‘This written ministerial statement is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less; The neighbourhood plan allocates sites for housing; and The local planning authority can demonstrate a three year supply of deliverable housing sites.’ Case law is clear that Ministerial Statements can be material considerations[1] but that the weight given to them is a matter for the decision-taker on a case-by-case basis. An analysis of the possible implications of this latest statement for housing land supply issues arising from applications for residential development is set out below, in terms of development plan policy and the National Planning Policy Framework’s policies as a material consideration. Table 1: Possible Outcomes for Housing Applications in accordance with the Ministerial Statement Source: Nathaniel Lichfield & Partners The Government has already made it clear that amendments to the Neighbourhood Planning Bill are being sought in the context of boosting significantly the supply of housing; as such it is no surprise that the Ministerial Statement is seeking to incentivise communities further to prepare and revise plans quickly and also to include policies for housing. The combined effect of all of these measures will almost certainly be a rush to achieve a positive referendum outcome, once communities are aware that their neighbourhood plans will have more influence when local planning authorities (and Inspectors) are determining housing applications. Our experience is that there is a high number of local planning authorities that have not consistently demonstrated a five year housing land supply, but far fewer fall short of a three year housing land supply. The recent trend for phasing housing in Local Plans, with some Council’s providing a lower housing requirement at the beginning of the plan period could be contributing to this. As such, the number of areas where neighbourhood plan policies could carry greater weight than local plan policies in the context of housing applications could be extensive. As part of the Manchester Office’s work for existing clients, we are aware of at least one council in the North West that has between 3 – 5 years housing land supply and a number of adopted neighbourhood plans. However, given the number of neighbourhood plans being progressed across the UK, the administrative areas where housing policies in neighbourhood plans could continue to apply is likely to be far higher. Figure 1: Neighbourhood Plans being Progressed Updated 4th January 2017 Source: Planning ResourceWe have previously reported in our Research Intelligence document: Early Adopters and the Late Majority that only 86 out of 139 local plans submitted for examination post-adoption of the National Planning Policy Framework have been found sound and of those, a third have been required to undertake immediate / early review. In comparison, another of our Research Intelligence documents has highlighted how neighbourhood plans are being prepared at such a pace that this is leaving local plans behind in some areas. National Planning Practice Guidance is clear that the most up to date plan carries more weight. In this context and given the cumbersome local plan process, developers and practitioners could be forgiven for thinking that this latest Written Statement, when taken with amendments to the Neighbourhood Planning Bill, is seeking to provide a ‘booster seat’ for the neighbourhood plan at the expense of the local plan. Whilst communities may well see the Statement as a further victory for neighbourhood planning following a succession of High Court ‘wins’ for neighbourhoods defending their housing policies (see East Bergholt and Ives) local planning authorities would be sensible to take a cautious approach at least for now, given that a group of 18 claimants - including housebuilders Redrow Homes and Linden Homes and land promoter Richborough Estates - has sent a judicial review pre-action protocol letter to the Department for Communities and Local Government (DCLG). The letter, issued by planning lawyer Stuart Andrews, partner and head of planning at Eversheds, calls Communities Secretary Sajid Javid to withdraw the Statement. Moreover, the publication of the Ministerial Statement could also promote legal challenges to neighbourhood plans where a plan has taken a ‘light touch’ approach to their evidence base supporting housing policies; Henfield[2] has been a warning to many neighbourhood planning bodies. Plans prepared in advance of local plans could be particularly vulnerable. If the Ministerial Statement is treated as a material consideration and universally applied for the next two years, it could have a marked effect on the location and distribution of housing across England -that is if neighbourhood planning bodies are have the resources to complete and update their plans quickly and diligently. Under these challenging circumstances, NLP is very well-placed to advise those with land interests in areas affected by a neighbourhood plan in a local authority area with less than a five year housing land supply. For more information, please contact NLP’s Manchester Office on 0161 837 6130. [1] Oxford Diocesan Board of Finance v SoS for Communities and Local Government and Wokingham B.C. [ 2013] [2]  Stonegate Homes Ltd & Anor, R (On the Application Of) v Horsham District Council [2016] EWHC 2512  

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