The Judicial Review of the Written Ministerial Statement (“WMS”) on Neighbourhood Development Plans (NDP”) (12 December 2016) was brought by 25 house builders and developers. It challenging both the process and content of the WMS. The key attribute of the WMS is that it removes the requirement for a 5-year supply of housing land in all areas where a NDP had been made and the NDP allocates sites for housing. Instead, in these areas with a made NDP, there is only be a requirement for the LPA to show a 3 year supply of housing land.

The key problems with the WMS are (i) it was issued without any consultation; (ii) the 3 year protection applies whether the NDP allocates 200 houses or just 2 (no regard is had to the housing requirement for the settlement or whether the NPD is allocating its ‘fair share’); and as a consequence (iii) it plainly reduces the supply of new homes in areas already failing to supply enough new homes, by reducing the housing requirement to 3 years (so an apparent contradiction of Ministerial claims about the Government being committed to addressing the housing crisis and the delivery of new homes).

Why was it issued? It was done to appease Tory MPs who threaten to vote against the Government during the passage of the Neighbourhood Planning Act 2017. The MPs demanded a “neighbourhood right to be heard” which the Government was keen to avoid. As a compromise Ministers offered the WMS on NDPs instead. But to address the threat from the MPs the Government had to issue it immediately. The consequence was a major policy change upon which there was no consultation.  Large sections of the development industry were justifiably concerned about the WMS, its content, the evidence behind it, and the lack of consultation.

The Government justified its decision to issue the WMS on the basis of its own research suggesting NDPs delivered more housing than proposed by LPAs. But as the Claimant’s pointed out, the research behind that was GCSE standard at best: it was highly questionable and in the main related to comparing the housing allocated in NDPs to all available SHLAA sites or draft local plans which had not even been examined. Large sections of the development industry were justifiably concerned about the WMS, its content, the evidence behind it, and the lack of consultation.

The challenge was unsuccessful in the High Court, but an appeal was lodged in the Court of Appeal. However, that appeal has now been withdrawn as it has been overtaken by events. The revised draft NPPF issued last month addresses most of the main concerns of the industry. The 3-year requirement will only apply if the NPD “contains policies and allocations to meet its identified housing requirement”. And, crucially, this 3 year policy is now being consulted upon through a full consultation process.

Of course, the revised NPPF doesn’t address the problem of having a 3-year supply test for areas already struggling to meet their housing needs in the first place. But the law is clear – Ministers can make whatever bad policy decisions they like. The critical thing is that the development industry, LPAs and the professional planners who represent them now respond to the consultation point out why reducing the supply in areas which already have a supply problem is simply making a bad problem worse. And Government Ministers should not be allowed to blame the industry when, as seems inevitable, delivery problems escalate in areas already failing to meet their 5-year supply because large parts of rural England are only required to have a 3-year supply of housing land.

Christopher Young QC
Planning Group