KnowHOW Essential reading for commercial property professionals who need to be in the know
NEIGHBOURHOOD PLANNING:
Written Statement from Gavin BarwellOn Monday 12th December, the Government issued a written ministerial statement in a move which is aimed at strengthening Neighbourhood Planning and Neighbourhood Development Plans ("NDPs") in areas where Local Planning Authorities cannot demonstrate a five-year housing land supply.
Since their introduction in the 2011 Localism Act, NDPs are now a firmly established facet of the plan-led system, with over 230 NDPs adopted in England and many more in progress.
Planning policy on housing supply up until this point has been guided by Paragraph 49 of the NPPF. Paragraph 49 states that if the Local Planning Authority cannot demonstrate a deliverable five-year supply of housing, then the relevant policies for the supply of housing should not be considered up-to-date and applications should be considered in the context of the presumption in favour of sustainable development. However, in practice, the application of Paragraph 49 has been inconsistent to date.
In a decision in November, Communities Secretary, Sajid Javid, refused plans for 100 homes in Yapton, West Sussex, despite the Local Authority being unable to demonstrate a five-year supply of housing. Mr Javid rejected an Inspector's recommendation for approval and attached substantial weight to Yapton's adopted NDP, concluding that it had the flexibility to meet any future housing shortfall.
Two weeks prior to this decision, the message was different. Mr Javid resolved to approve two schemes in Cheshire East - one in Sandbach and another in Holmes Chapel. Both schemes proposed housing in locations where the adopted NDP sought to restrict development on the subject sites. However, Mr Javid concluded that the housing policies within the adopted NDPs should be regarded as out-of-date as a result of a wider and significant housing undersupply in Cheshire East.
In an effort to clarify the Government's position on this issue and to add weight to adopted NDPs, Planning Minister Gavin Barwell's written statement states that:-
"Building on proposals to further strengthen neighbourhood planning through the Neighbourhood Planning Bill, I am today making clear that where communities plan for housing in their area in a neighbourhood plan, those plans should not be deemed to be out-of-date unless there is a significant lack of land supply for housing in the wider local authority area. We are also offering those communities who brought forward their plans in advance of this statement time to review their plans.
This means that 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; andThe local planning authority can demonstrate a three-year supply of deliverable housing sites.
This statement applies to decisions made on planning applications and appeals from today. This statement should be read in conjunction with the National Planning Policy Framework and is a material consideration in relevant planning decisions."
The proposed changes underline the Government's commitment to placing Neighbourhood Planning at the heart of the development planning and decision making processes, seeking to 'protect' newly formed NDPs from being overruled unless a "significant lack of land supply for housing in the wider local authority area" can be demonstrated – that is, less than three years.
This written statement is an immediate and fundamental change to the way planning decisions are made and, in essence, generates an additional layer of policy to that contained in Paragraph 49 of the NPPF. This will undoubtedly mean that developers and housebuilders will need to apply a more rigorous critique of housing land supply in areas where an NDP is in force in order to demonstrate that a local authority has less than a three-year supply of housing land. There is also no indication in the statement as to how outstanding appeals that have been scrutinised based on a five-year supply position will be treated. It will be important to monitor upcoming appeal decisions in light of this. The Planning Minister does, however, refer to the new Housing White Paper, due early in 2017, which will seek to ensure that
“new neighbourhood plans meet their fair share of local housing need and housing is being delivered across the wider local authority area." We will eagerly anticipate the detail of this change to legislation to understand if it will offer a more robust mechanism to ensure that NDPs are not used primarily as anti-development vehicles.
It is important to flag that there is a possibility that the changes enacted in a ministerial statement could be subject to legal challenge. There is already precedent for this type of challenge – in November 2014, then Housing Minister, Brandon Lewis, announced in a written statement that for developments of 10 dwellings or less, Councils would not be able to impose affordable housing conditions via Section 106 agreements. This was challenged by West Berkshire and Reading Borough Council and the changes were initially quashed in a High Court ruling in July 2015. The challenge was upheld on the grounds of:- - The policy was inconsistent with the statutory planning regime;
- Failure to take into account material considerations;
Consultations were legally inadequate;- Failure to properly assess the impact on persons with protected characteristics.
Whilst the changes were ultimately allowed by the Court of Appeal in May 2016, the High Court’s decision did recognise that fundamental changes to planning policy should be subject to proper consultation and should be consistent with the statutory planning regime.
In the early weeks of the New Year, we will closely monitor the implementation of these changes, keep abreast of any moves for legal challenge and undertake a detailed review of the eagerly anticipated Housing White Paper. If you have any questions please do get in touch.
|