Town and country planning – Neighbourhood development plan – Material considerations – National planning policy – Claimants challenging decision of defendant secretary of state decision to issue written ministerial statement (WMS) and change to national planning policy guidance – Whether defendant failing to have regard to material considerations – Whether WMS rendered unlawful by Supreme Court’s interpretation of national planning policy framework – Claim dismissed
In the Localism Act 2011 a new tier of the development plan was created by extensive amendment of the Town and Country Planning Act 1990. Once made, a neighbourhood development plan (NDP) formed part of the development plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004, which provided that determinations should be in accordance with the plan unless material considerations indicated otherwise. The NDP could allocate land for development including housing and contain a policy determining a volume of development (such as houses) during the plan period. Specific provision was made for NDPs within the National Planning Policy Framework (NPPF).
In 2016, the defendant secretary of state became concerned about the impact upon an NDP of the fact that the local authority could not demonstrate that it had a five-year supply of housing as required by para 47 of the NPPF. The defendant issued a written ministerial statement (WMS) which provided that relevant policies for the supply of housing in an NDP should not be deemed “out-of-date” under para 49 of the NPPF where: (i) the WMS was less than two years old, or the NDP had been part of the development plan for two years or less; (ii) the NDP allocated sites for housing; and (iii) the local authority could demonstrate a three-year supply of deliverable housing sites.
In the case of Secretary of State for Communities and Local Government v Hopkins Homes Ltd [2017] UKSC 37; [2017] EGLR 27, the Supreme Court held that it was not necessary to determine whether a policy was a “relevant policy for the supply of housing” in para 49 of the NPPF and deem it “out-of-date” in order to determine the weight to be attached to that policy. The defendant responded by changing the national planning policy guidance (NPPG) to provide that, where the criteria in the WMS applied, decision-makers should give significant weight to the NPD, notwithstanding the fact that the local authority could not demonstrate a five-year supply of deliverable housing sites.
The claimants challenged the defendant’s decision to issue the WMS, together with a subsequent change to the NPPG. They contended that, in making the WMS, the defendant had failed to have regard to material considerations such as the need for further research about the effectiveness of NDPs. Further, the WMS had been rendered unlawful by the Supreme Court’s interpretation of the NPPF in Hopkins.
Held: The claim was dismissed.
(1) The legislative framework did not lay down criteria for assessing the merits of planning policy which had been made, nor did it lay down those matters which the defendant should or should not have regard to when making national policy. Provided, therefore, that the policy produced did not frustrate the operation of planning legislation, or introduce matters which were not properly planning considerations at all, and was not irrational, the matters which the defendant regarded as material or immaterial to the determination of the policy being issued was a matter entirely for the defendant. Thus, the complaints raised by the claimants in relation to the failure to take account of material considerations such as the need for a package of measures including a range of changes to the NPPF, a methodology for determining objectively assessed neighbourhood housing need and further research, the failure to take account of the impact of the WMS on the operation of para 14 of the NPPF and the failure to take account of how neighbourhoods were going to meet their fair share of the housing needs of their area after the WMS was in force, were all matters caught by the principle set out in R (on the application of West Berkshire District Council and another) v Secretary of State for Communities and Local Government [2016] PLSCS 137; [2016] 1 WLR 3923. In any event, almost all the matters relied upon as material considerations left out of account were matters which were in fact referred to in the recent disclosure. Thus, they were matters which were under consideration by the defendant at the time when the WMS was being forged. They were not therefore left out of account.
(2) When the WMS was made, it faithfully reflected the interpretation of para 14 and 49 of the NPPF provided by the Court of Appeal in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] PLSCS 90. The emergence of a different interpretation in the judgments of the Supreme Court did not render the policy unlawful and liable to be quashed. Against the background of the Court of Appeal decision, the WMS explained that “relevant policies for the supply of housing in a neighbourhood plan, should not be deemed to be ‘out-of-date’ under paragraph 49”. The NPPG acknowledged that that approach had been superseded: it was no longer necessary to determine whether a policy was a relevant policy for the supply of housing and to deem it out-of-date to determine the weight to be attached to it. That was a matter for the planning judgment of the decision-maker. The effect of the NPPG, following the Supreme Court decision, was to note the application of the tilted balance from para 14 of the NPPF applying when policies were out-of-date and the trigger for that conclusion when the local planning authority could not demonstrate a five-year supply of housing.
(3) The policy of the WMS and NPPG under scrutiny in this case was capable of being understood and applied in practice. The purpose of the WMS, and the subsequent addition to the NPPG, was to change national policy in relation to housing applications in areas with a recently made NDP. There was nothing in principle unlawful with changing policy. The effect of the WMS and NPPG was that when assessing the tilted balance, significant weight should be given to the NDP if the three criteria contained in the WMS and NPPG applied. That was not an amendment to para 49 or para 14. It was a clear policy which was not irrational and was grounded in the elements of the NPPF engaged with housing delivery and neighbourhood planning.
Christopher Young, James Corbet Burcher, Nina Pindham and Hashmi Mohamed (instructed by Eversheds Sutherland Ltd LLP) appeared for the claimants; Nathalie Lieven QC and Richard Moules (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Richborough Estates Ltd and others v Secretary of State for Housing, Communities and Local Government
