LAYTONS
Neighbourhood Planning Will they learn? - Minister's instant planning policies challenged
LAYTONS Our Sectors • • • •
Technology, Communications & Digital Media Construction, Land & Planning Personal Affairs, Private Wealth & Philanthropy Retail & Hospitality
Our Expertise • • • • • • • • • • • •
Banking & Finance Charities Commercial & Corporate Data Protection & Information Disputes Employment & Immigration Family & Matrimonial Insolvency & Restructuring IP & Technology Real Estate Tax Trusts, Estates & Private Client
This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.
Neighbourhood Planning | February 2017
Neighbourhood Planning Will they learn? - Minister's "instant" planning policies challenged “We learn from history that we learn nothing from history” George Bernard Shaw History is repeating itself! Five years ago, Eric Pickles, then Secretary of State for Communities and Local Government, unilaterally abolished Regional Spatial Plans. This action was challenged through the Courts. History now seems to be repeating itself, the issue now being the benchmark for deciding whether a Neighbourhood Plan is (or is not) “out of date”.
Neil Bucknell Partner | Real Estate neil.bucknell@laytons.com +44 (0)1483 407 000
3
Neighbourhood Planning | March 2017
On 12 December last year, Gavin Barwell the Minister of State for Housing and Planning and the Minister for London made a written ministerial statement. After claiming that Neighbourhood Plans have on average increased the number of proposed homes by approximately 10% compared to the numbers previously proposed by the local planning authority, he has declared unilaterally a test for whether a Neighbourhood Plan is up to date, by reference to the housing supply in the area. As he pointed out, paragraph 49 of the National Planning Policy Framework (NPPF) states that the local planning authority cannot demonstrate a 5 year supply of deliverable housing sites, its housing delivery policies should not be considered up to date. What test therefore would be applied to Neighbourhood Plans? The answer is that a Neighbourhood Plan will not be deemed out of date if it
Sector
complies with all of the following:
Construction Land & Planning
a.
it is either less than 2 years from the date of this statement, or the relevant Neighbourhood Plan has been part of the development plan for 2 years or less
b. the plan allocates sites for housing
Experience Real Estate
c.
the local planning authority can demonstrate a 3 year supply of deliverable housing sites
The statement was to have immediate effect. No explanation was given, nor any cogent supporting
Experience
evidence or information supplied, explaining why in the area
Planning & Environment
of a local planning authority that has failed to comply with the test in paragraph 49 of the NPPF, its Neighbourhood Plans will nonetheless be upheld if it can still demonstrate 3 years supply.
4
Neighbourhood Planning | March 2017
On 30 December, a pre-action protocol letter (effectively, a
investigation of the performance of neighbourhood planning
letter inviting the party to whom it is addressed to take an
in delivering housing, carried out in 2015, could mostly find
action to avoid litigation) was delivered to the Minister in
only Neighbourhood Plans where there were no relevant local
anticipation of judicial review of the statement. It was lodged
plans to use as a benchmark against which any increased
on behalf of 18 claimants, including a land promoter, two
delivery could be measured. The letter goes on to point
national listed housebuilders, and a number of other regional
out that the statement could indeed be counterproductive,
and local developers and other businesses involved in
and go against the Government’s declared policy of
residential development. It sets out a number of complaints.
boosting housing supplies. Finally (although presumably
It points out that there has been no proper consultation
of limited interest to most commentators and the house
although the statement purports to amend paragraph 49
building industry in particular) it was also pointed out that
of the NPPF, which was subject to considerable consultation
the statement was not accompanied by a Equality Impact
before it was promulgated. It notes that the 5 year supply of
Assessment as required by Section 149 of the Equality Act
housing land is a long-established national policy benchmark
2010.
and forms the basis of the policy and practice, having been recognised over the years as an appropriate way of measuring
The letter invited the Government to withdraw the statement
housing supply having regards to the delays in the planning
within 14 days. No such withdrawal has occurred, and the
process, from the point where sites are identified, followed
application for judicial review has been made and we await
by the grant of an outline planning permission, discharging
the next development with interest.
conditions, constructing enabling infrastructure and starting work in earnest to deliver the first completion. The letter
Once again, the Planning Minister finds himself being taken
points out that potentially there could be a perverse result –
to Court for making a policy “on the hoof” without proper
demonstrating a 3 year housing supply may in fact be more
consultation, or properly considering its indications. Will they
difficult than a 5 year housing supply, so this might undermine
ever learn?
(rather than reinforce) Neighbourhood Plans. The evidence is challenged, notably because the only available published
5
LAYTONS London
Manchester
Guildford
2 More London Riverside London SE1 2AP +44 (0)20 7842 8000 london@laytons.com
22 St. John Street Manchester M3 4EB +44 (0)161 214 1600 manchester@laytons.com
Ranger House, Walnut Tree Close Guildford GU1 4UL +44 (0)1483 407 000 guildford@laytons.com
laytons.com
Š Laytons Solicitors LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº 566807). A list of members is available for inspection at the above offices.