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Richborough Estates Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 (Admin)

DATE: 15 Jan 2018

On 12 January, in a significant judgment affecting housing applications in neighbourhood plan areas, Dove J dismissed this claim for judicial review of the Written Ministerial Statement on Neighbourhood Planning issued on 12 December 2016, and the amendments made to paragraph 083 of the Neighbourhood Planning chapter of the National Planning Practice Guidance on 10 August 2017.

The claim was brought by 25 housing developers who argued that:

(1) in the light of the Supreme Court’s decision in Hopkins Homes, the Secretary of State had: (i) issued the WMS on the basis of an error of law as regards the effect of NPPF 49; (ii) issued the WMS which is inconsistent with NPPF 49 and NPPF 14; (iii) acted unreasonably in so doing; and (iv) failed to consider the implications of the WMS on the operation of NPPF 14;

(2) it was Wednesbury unreasonable for the Secretary of State to use the Research Paper referred to in the WMS to formulate a change in policy;

(3) the “three year housing land supply policy in the WMS” is illogical and irrational because it will not in fact offer protection from windfall development. That contention was based on the premise that local planning authorities will find it harder to demonstrate a three year supply of housing land than a five year supply because much new housing development takes more than 3 years to complete;

(4) the WMS is irrational because it “seeks to curtail the supply of planning permissions for new homes by seeking to protect NDP areas from windfall development, whilst claiming to have a policy which seeks to boost significantly the supply of new homes and build more homes”; and

(5)the Claimants had a legitimate expectation of consultation founded on established practice.

Dove J rejected all 5 Grounds:

Ground 1: 

"when the WMS was made, it faithfully reflected the interpretation of paragraphs 14 and 49 provided by the Court of Appeal in Hopkins Homes, and that the emergence of a different interpretation in the judgments of the Supreme Court did not render the policy unlawful and liable to be quashed." (para 37).

"It is obvious that the purpose of the WMS, and the subsequent addition to the NPPG, was to change national policy in relation to housing applications in areas with a recently made NDP. I can see nothing in principle unlawful with changing policy. The reality is that, as set out above, paragraph 49 continues to apply as a trigger for the tilted balance in accordance with paragraph 59 of Hopkins Homes in the Supreme Court. The effect of the WMS and NPPG is that when assessing the tilted balance, significant weight should be given to the NDP if the three criteria contained in the WMS and NPPG apply. That is not an amendment to paragraph 49, or for that matter paragraph 14. In my judgment it is a clear policy which is not irrational and is grounded in the elements of the Framework engaged with housing delivery and neighbourhood planning." (Para 45)

Ground 2:

"the defendant merely observes that the "recent analysis suggests" that NDPs are helping to boost housing supply.  The use of that word indicates clearly that the defendant was not asserting that this was a hard and fast concluded view.  ....  it is a large leap from observing that mismatch to concluding (when the "recent analysis" was in the public domain and available in order to obtain further understanding of the reasoning underpinning the WMS) that the defendant was here making an irrational decision based upon mistakes of fact giving rise to an error of law" (para 52)

"in my judgment that it is quite impossible to conclude that the decision which the defendant made was irrational on the basis contended for under Ground 2, namely that either the evidence was not understood by the defendant, or alternatively the evidence was wholly inadequate to substantiate the issuing of the policy. The criticisms raised in relation to the qualities of the evidence contained in the 2015 and 2016 research is based upon matters which are clear and specified in the research itself." (para 55)

Ground 3:

"the reference to three year housing land supply is clear." It means three years supply measured against the local planning authority’s five year requirement.

Ground 4:

"There is, in my judgment, a relatively short answer to this Ground. ...  whilst it is undoubted that the Framework clearly promotes as a key priority a significant increase in the supply of homes, and places a national priority on this objective as a key change in National Planning Policy, ... It is not a policy objective which is to be pursued at all costs and irrespective of the other objectives of the Framework. .... As is far from uncommon in relation to the consideration of planning policies the objectives addressed in the Framework will, from time to time, pull in different directions. The decision-maker, or in this instance the defendant as policy maker, will have to balance the interests and objectives of the policy in reaching a view as to the appropriate decision or policy to adopt. This is precisely the process which was engaged in the publication of the WMS and I am unpersuaded that there was any irrationality in the defendant's decision in this connection." (para 61)  

Ground 5:

"in my view the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS." (para 75).

Richard Moules acted for the Secretary of State instructed by the Government Legal Department.