Planning Law Update – January 2017

Posted on: January 3rd, 2017

Whilst we’re all waiting excitedly for the Housing White Paper to emerge (what do you mean you’re not excited?!) the role of Neighbourhood Plans in the planning process continues to develop.

First of all the St Ives Neighbourhood Plan was upheld in November despite a challenge to its policy which seeks to prevent second home owners of new homes constructed in that particular part of Cornwall. A number of rural or traditional tourist areas have experienced a rise in second home ownership over the last 15-20 years which, whilst supposedly good for the tourist industry, means that local people can be priced out of the market.

It remains to be seen whether the policies seeking to deal with this issue are capable of enforcement. Perhaps the policy will simply put off second home owners from buying in a particular area where such policies apply and risk taking on the Local Planning Authority enforcement team: This may be the desired effect. There are now numerous Neighbourhood Plans in production in Cornwall and elsewhere and, since the St Ives plan was upheld, other areas have stated a desire to copy the planning policy approach in an attempt to prevent second home ownership.

As an aside on this matter, it has been announced that the Government will provide a Community Housing Fund of £60m annually to assist with the development of housebuilding skills for community groups and enable them to build their own homes to alleviate some of the effects of second home ownership.

The Government are very much committed to the concept of Neighbourhood Plans; at least they appear to be looking for ways to encourage the growth of such plans, probably because these, in theory at least, result in local engagement with the planning process. This is all very well as long as engagement is sensible and recognises the various strategic aims of the planning system, such as the need for housing and new employment space, and the need for economic growth.

The latest on the status of Neighbourhood Plans is that, according to a Written Ministerial Statement from Planning Minister Gavin Barwell, these should be upheld even where the Local Plan for the area does not have a 5 year housing supply.

This would seemingly run counter to paragraph 49 of the National Planning Policy Framework (NPPF), which states that local plan policies would be considered out of date in the event that a local plan did not have a 5 year housing land supply. However, given the written ministerial statement it could be less likely that neighbourhood plans will be ruled out-of-date simply because of the local plan’s lack of a five year housing supply. The Statement says that local plans would not automatically be deemed out of date in such circumstances if the following conditions applied when a decision on an application is made:

  • This written ministerial statement is less than two years old, or the neighbourhood plan has been part of the development plan for two years or less
  • The neighbourhood plan allocates sites for housing
  • The local planning authority can demonstrate a three-year supply of deliverable housing sites

The timing in the conditions on the statement would mean that for the next two years neighbourhood plans that allocate housing sites will be considered to be up-to-date if the Planning Authority has a three year housing land supply. After that, all neighbourhood plans that have been part of the local development plan for two years or less will be seen as up-to-date, assuming the three year supply exists.

This will potentially have an unwanted consequence in terms of preventing sites from being promoted for housing development, particularly in local authority areas where they can show three years’ worth of supply but no more, and they also have particularly restrictive Neighbourhood Plans in place.

Following the recent consideration of the status of a Written Ministerial statement by the Courts in the case of Reading and West Berkshire, it may be possible for a challenge to the above approach on the basis that the statement merely represents a material consideration which a decision maker needs to take into account when considering a planning application. The Reading and West Berkshire case reiterated the importance of the hierarchy of planning policy, with the pre-eminence of the Development Plan as the primary consideration for Local Planning Authorities/Planning Inspectors when determining a planning application, in the context of a written ministerial statement on Affordable Housing. Other recent case law regarding the importance of paragraph 49 of the NPPF has also meant a literal interpretation of its wording, and given the position of the NPPF at the top of the planning policy hierarchy this begs the question, how in practice are decision makers expected to ignore the NPPF when there is a Neighbourhood Plan in existence and no 5 year housing supply in the Local Plan?

There is some speculation that all of this may be improved by proposals in the Housing White Paper, which may set out a requirement for Neighbourhood Plans to meet their fair share of housing need, although you might be forgiven for not holding your breath! As stated at the outset, the emergence of the Housing White Paper will be vitally important for providing some detail on these issues.

Since this article was finalised it has been announced that the written ministerial statement may be challenged by way of Judicial Review imminently for amending planning policy without following the usual consultation procedures. An update on this will be provided in our next newsletter.