Dear Mr Raab, This Case Illustrates Much Of What Is Wrong With Planning

Spare a thought for Dominic Raab, who was appointed minister for housing on 9 January 2018. (Is he also minister for planning as his predecessors were? Who knows?). Linklaters-trained lawyer, he may have thought that the EU was byzantine in its tiers of policy making but that is surely as nothing compared to the English planning system. 
I do hope that Mr Raab sits down to read Dove J’s judgment in Richborough Estates Limited (and 24 other co-claimants) v Secretary of State (12 January 2018). This is of course the challenge by various land promoters and house-builders to the written ministerial statement made on 12 December 2016 (without prior consultation) by Mr Raab’s predecessor but one, Gavin Barwell. I blogged about the WMS at the time (That Written Ministerial Statement, 29 December 2016). 
For me the case illustrates the unnecessary policy complexities arising from unclear statements, ad hoc glosses to previous policies and the unclear inter-relationship between the NPPF, PPG and written ministerial statements. It also evidences the obvious tension between on the one hand the Government’s desire to increase housing land supply by ensuring that failure by authorities to provide adequately has real consequences and on the other hand the Government’s desperation to retain public confidence in neighbourhood planning. If that wasn’t enough, you have within it the attempt by policy makers to take into account the implications of the Supreme Court’s ruling in Suffolk Coastal – that one should also definitely be on Mr Raab’s reading list. 
You will recall that, despite the policy in paragraph 49 of the NPPF 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 (triggering the presumption in favour of sustainable development in paragraph 14), the WMS provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be ‘out-of-date’ where the WMS is less than two years old or the neighbourhood plan has been part of the development plan for two years or less; the neighbourhood plan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; and the local planning authority can demonstrate a three-year supply of deliverable housing sites.
Effectively the five year housing land supply target was being significantly watered down, to a three year target, where an up to date neighbourhood plan, allocating sites for housing (however few) was in place. The policies in that plan would still have full effect. Following the Supreme Court’s ruling in Suffolk Coastal, which clarified the operation of paragraphs 14 and 49, the Government changed its PPG but policies in neighbourhood plans which met the criteria in the WMS were still to be given ‘significant weight’ notwithstanding there not being a five years’ housing supply. 

Richborough and the other claimants sought to quash the WMS on various grounds. They argued:

– the WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful;

– the Government had made errors of fact in the research that was relied upon in formulating the policy;

– the WMS was invalid for uncertainty and confused given a lack of clarity as to how the three years’ supply was to be calculated;

– irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“;

– breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS. 

Dove J found for the Government on all grounds. He found that the Government has a very wide discretion in the way that it brings forward planning policy:
Provided […] that the policy produced does not frustrate the operation of planning legislation, or introduce matters which are not properly planning considerations at all, and is not irrational, the matters which the defendant regards as material or immaterial to the determination of the policy being issued is [sic] a matter entirely for the defendant“. 
The policy was capable of “sensible interpretation“: three years’ housing land supply was to be calculated using the same methodology as for calculating five years’ supply. 
The judge did not interpret the WMS, with the subsequent addition of the guidance in the PPG, as amending paragraph 49 or 14 of the NPPF, albeit that it did “change national policy in relation to housing applications in areas with a recently made [neighbourhood plan]“. I am still struggling with this one – undoubtedly the WMS has changed the application of the NPPF in areas with a neighbourhood plan that meets the NPPF criteria. Even if this is not unlawful, surely this approach to policy making is to be discouraged – the NPPF does not now mean what it says. 
The judge found that there was an adequate evidential basis for the WMS and errors of fact had not been made. The bar was low given that the WMS had only stated that ‘recent analysis suggests…“. 
As regards the suggestion of irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“, the judge noted that this “is not an objective which exists on its own and isolated from the other interests addressed by the Framework…Amongst the other concerns for which the Framework has specific policies is, of course, Neighbourhood Planning...”
The judge set out the circumstances in which a legitimate expectation to consultation arises and found that such an expectation did not arise because a limited number of other policy announcements in relation to housing and planning matters had not been preceded by consultation. I understand that the claimants are likely to seek permission to appeal on this last ground. 
So, there is disappointment for those of us who saw Gavin Barwell’s WMS as an inappropriate attempt to rewrite (without the consultation which would have been so helpful in arriving at a workable policy) a key protection that is within the NPPF against authorities that fail properly to plan for housing. The disappointment is reduced since the Suffolk Coastal ruling and the change to the PPG which followed (no doubt largely because the Government was faced with this litigation) where the Government sought to clarify that the WMS did not change the operation of paragraph 49, although “significant weight” should be given to the neighbourhood plan. 
But, stepping back, the planning system has become as tangled again as it was at the time of the great bonfire of the previous planning policy statements and circulars in 2012 – we are having to pick uncertainly through unclear passages in the NPPF, the PPG and the WMS, reliant on regular revelations from the courts as to what the documents actually mean; decision-makers are having to ascertain the relative weight to be applied to various, often inconsistent, policies at national, local and neighbourhood level, and in the meantime the Government apparently has carte blanche to change its policies without prior consultation (policies were meant to be just in the NPPF, guidance in the PPG if you remember…).
There is a heavy burden on the shoulders of those drafting the new NPPF, that’s for sure! And a massive and important job to do for our new housing minister.
Simon Ricketts, 12 January 2018
Personal views, et cetera

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