“3 Year Supply” Lives To Fight Another Day As Written Ministerial Statement Upheld

Stuart Tym, Head of Planning at Wilkes examines the recent judgment given by Dove J on 12 January 2018 in Richborough Estates Ltd v Secretary of State for Housing, Communities And Local Government [2018] EWHC 33 (Admin) (12 January 2018).

The Written Ministerial Statement (WMS) dated 12 December 2016 introduced the concept of a 3 year Housing Land Supply in areas with up-to-date Neighbourhood Plans as follows: –

Relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made: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.

There were 6 grounds of appeal and through the court process they were condensed down into the five points below:

1. The WMS is illogical and irrational compared to its stated intention. It is also “Wednesbury unreasonable”.
2. The WMS is based and evidenced on mistaken facts which are misleading. It is irrational and “Wednesbury unreasonable” to rely on such evidence to formulate government policy.
3. The WMS is invalid for uncertainty and confused.
4. WMS is irrational, perverse and “Wednesbury unreasonable” when set against the government’s clearly stated policy to significantly boost the supply of housing.
5. Legitimate expectation of consultation.

The consortium had an early victory in relation to Ground 2, which specifically relied upon “recent analysis” which claims to show that NDPs have planned for 10% more homes than planned for by the relevant local planning authority.

In October 2017 Mr Justice Gilbart accepted the claim that it was not true that the average neighbourhood plan made provision for 10 per cent more housing.  It was based on a selection of plans and not all plans which had been made.  The judge’s ruling over the 10% claim was sought to secure the disclosure of the information (excluding legal advice) that informed the secretary of state’s decision to issue the written ministerial statement.

That victory was short lived and Dove J found in favour of the Secretary of State on all five grounds as detailed below: 

1) I am satisfied that at the time when the WMS was made, it faithfully reflected the interpretation of paragraphs 14 and 49 provided by the Court of Appeal in Hopkins Homes, and that the emergence of a different interpretation in the judgments of the Supreme Court did not render the policy unlawful and liable to be quashed…  First and foremost, the difficulty of establishing that the policy is one which no reasonable minister in the position of the defendant could promulgate is manifest: the proposition raises a very high hurdle for a claimant to surmount, given the breadth of the operational considerations for the defendant and the degree of respect which the court must afford the defendant in making policy to guide the exercise of his executive functions.

2) In relation to the evidential basis for the government “suggesting” that NDPs are helping to boost housing supply. That kind of forensic dissection of a document of this nature is in my view wholly unnecessary and inappropriate.

3) So what is meant by a 3 year supply?  “The first is that the WMS and NPPG exist within the context of the Framework, which clearly measures the adequacy of current housing land supply by reference to the demonstration of a five-year supply. Thus the sense of the text is that if, in undertaking that assessment, more than three years (but less than five) can be demonstrated then the NDP will have the benefit of the WMS and NPPG policy. Secondly, and related to this, the reference to protection applying “unless there is a significant lack of land supply” points to a land supply of less than three years measured against the five-year requirement, rather than some free-standing assessment.” The criterion is a measure of at least three years supply when the LPA performs the five-year land supply exercise required by the Framework.

4) The Framework clearly promotes as a key priority a significant increase in the supply of homes, and places a national priority on this objective as a key change in National Planning Policy, that is not an objective which exists on its own and isolated from the other interests addressed by the Framework. It is not a policy objective which is to be pursued at all costs and irrespective of the other objectives of the Framework.

5) It is the claimants’ contention that on every occasion when there have been changes to national planning policy in relation to housing in the past there has been consultation with the house building industry before that policy has been confirmed. Thus, they contend that as a consequence of that practice there was a legitimate expectation that they would be consulted about the written ministerial statement before it was issued by the defendant.It is in my view important to observe that the house building industry are not the only parties with an interest in the content of national planning policy for housing. LPAs, amenity groups and the public at large will all have a potential interest or concern in relation to any change in national planning policy for housing.It follows that on the facts, even confining the enquiry to national planning policy in relation to housing (and ignoring the difficulty of justifying why housing should be isolated from other forms of development in this respect), in my view the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation.  It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing.

Stuart comments – “The judgment is not necessarily a surprise and we have repeatedly seen the Planning Courts find in favour of the governments ability to make and shape planning policy”. What is particularly helpful is the provision of clarity by Dove J in relation to Ground 3.

Stuart comments that the WMS itself was not as clear on this point as Dove J has now found it and has seen appeal time taken up debating what is meant by a 3 year supply throughout the last year.

What must have been imagined by the government as a simplistic approach to take the pressure off planning by appeal in areas which have Neighbourhood Plans, led practitioners to question whether a 3 year supply really was as simple as asking what number your 5 year supply calculation gives you and if it begins with a 3 or a 4 and can comply with the rest of the WMS you are ok. As Dove J comments, it could become harder to evidence a 3 year supply than a 5 year supply in certain circumstances.

What about, for instance the LPA’s who have a carefully planned 5 year supply based on the release of large strategic sites?  The start up work on those large strategic sites is such that houses will not be delivered in any great number in potentially the first 2-3 years of the 5 year period but the volume is such that a 5 year supply can still be provided at the tail end of the 5 year period.

It seems on this analysis it is possible to have a 5 year supply and still not have a 3 year supply.  Dove J considered similar scenarios but looked to the purpose behind the Governments WMS which was to lower the bar for those defending appeals in Neighbourhod Plan areas.  Dove J put this succinctly that “the criterion is a measure of at least three years supply when the LPA performs the five-year land supply exercise required by the Framework.”

Let’s face it, if the requirement was for a free-standing assessment it would also raise a resourcing question in an area of further under-resourced and cash strapped local authority planning departments.

To find out how The Wilkes Partnership can help with a full range of planning issues contact Stuart Tym on [email protected] or call 0121 710 5891.

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