That Written Ministerial Statement

Gavin Barwell’s 12 December 2016 Neighbourhood Planning: Written Statement  has attracted criticism not just for its content, but for inserting significant changes to the operation of the NPPF without prior consultation and without indeed making an amendment to the NPPF itself. 
Paragraph 49 of the NPPF provides that:
“Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
ie the presumption in favour of sustainable development in paragraph 14 is triggered. This means:
“where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: 

    * any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or 


    * specific policies in this Framework indicate development should be restricted”


The December 2016 written ministerial statement provides, “…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for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made: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; and


* the local planning authority can demonstrate a three-year supply of deliverable housing sites.”


It seems that consultation will take place in due course that will refine the policy, but in the meantime it takes immediate effect:

“Following consultation, we anticipate the policy for neighbourhood planning set out in this statement will be revised to reflect policy brought forward to ensure new neighbourhood plans meet their fair share of local housing need and housing is being delivered across the wider local authority area. It is, however, right to take action now to protect communities who have worked hard to produce their neighbourhood plan and find the housing supply policies are deemed to be out-of-date through no fault of their own.”

So, suddenly local authorities have an additional “get out of jail” card even where they cannot demonstrate a five-year supply – if the proposal is in a part of its administrative area that (1) has a neighbourhood plan that has policies for the supply of housing (including allocation of sites) and (2) if the local authority has at least a three-year supply of sites.


Local authorities with a dubious housing land supply position may now be immediately tempted to secure that neighbourhood plans within their area contain policies that echo their own housing supply/allocation policies!

Those determining applications and appeals will now need to grapple with the additional questions of whether the relevant neighbourhood plan includes policies for the supply of housing (a phrase that will be examined by the Supreme Court in February in the Hopkins Homes/Richborough Estates litigation) as well whether there is a three-year supply of deliverable housing sites (of course in some situations there may be a five-year supply but not a three-year supply, if the allocated sites have a long lead-in period but the lack of a three-year supply will be irrelevant if the five-year supply is there). 

It seems that the Government does not intend to amend the NPPF but to leave it to be read alongside the written ministerial statement. So much for the intent behind the NPPF in the first place, as described rather sceptically by the Court of Appeal in Hopkins/Richborough  (17 March 2016):
“”The “Ministerial foreword” concludes by stating that “[by] replacing over a thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning”. Some judicial doubt has been expressed about that assertion. As Sullivan L.J. said in Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government [2015] 1 P. & C.R. 3 (in paragraph 22 of his judgment, with which Tomlinson and Lewison L.JJ. agreed), “[views] may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter”. In an earlier case in which this court had to consider the meaning of the policy in paragraph 47 of the NPPF, City and District Council of St Albans v Hunston Properties Ltd. [2013] EWCA Civ 1610, Sir David Keene had expressed the view (in paragraph 4 of his judgment, with which Maurice Kay and Ryder L.JJ. agreed), that “[unhappily] … the process of simplification has in certain instances led to a diminution in clarity”.” (paragraph 8)
The lack of any intention to amend the NPPF is particularly disappointing given the fact that the Government consulted  in December 2015 over other proposed changes to the framework, which remain in hiatus pending the forthcoming Housing White Paper. If the document is to be updated, why not do the job properly (and clear up other ambiguities at the same time), rather than to allow people and communities to be shut out again from the process by having a supposedly comprehensive policy statement that is anything but?
Policy making by written ministerial statement  is understandably attractive for politicians. Indeed, since the changes to the Government’s consultation principles in January 2016  we can presumably expect much less consultation:
“Do not consult for the sake of it. Ask departmental lawyers whether you have a legal duty to consult…Do not ask questions about issues on which you already have a final view. “
A legal duty to consult often does not arise – if, for example, there is no specific statutory requirement, if there has been no prior indication that has lead to a legitimate expectation that there will be consultation or if the proposal is not a plan or programme to which the Strategic Environmental Assessment Directive applies.  
The Government’s 28 November 2014 written ministerial statement that introduced the vacant building credit and affordable housing small sites threshold predated the Government’s amended consultation principles. It may well be that there was in fact no duty on the Government to consult. However, if a public body chooses to carry out consultation it must abide by judge-made rules of lawful consultation – the Sedley principles:
a)  Consultation must take place when proposals still at a formative stage;
b)  The public must be given sufficient information to allow for intelligent consideration and response;

c)  Adequate time must be given for consideration and 
response;

d) The consultation responses be conscientiously taken into 
account in finalising the proposal.

The adequacy of the consultation undertaken ahead of the 2014 statement was of one of the grounds of challenge in West Berkshire Council v Secretary of State  (Court of Appeal, 11 May 2016). Whilst the Court of Appeal found the consultation process to be lawful, that had not been the conclusion of Holgate J at first instance. No wonder the advice is now: if you don’t have to consult, don’t. Depressing for those who might hope that open debate leads to better policy making and fewer unintended consequences.

Simon Ricketts 29.12.16

Personal views, et cetera

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