Our take on WMS Judgment: Augmented reality hits home

Royal Courts of Justice

Today, 12 January 2018, the High Court dismissed a legal challenge brought by 25 housebuilders and strategic promoters led by Richborough Estates, and supported by Turley, to Gavin Barwell’s Written Ministerial Statement of December 2016.

Two housing ministers later, with a Supreme Court judgment inbetween which shifted the ground beneath the case, whilst it was ultimately unsuccessful, the Judgment still shows the case was worth bringing to clarify policy for housing in Neighbourhood Plan areas.

The 25 claimants jointly argued that the Written Ministerial Statement (WMS) gave added protection to recently made Neighbourhood Plans where local planning authorities could not demonstrate a five year supply. This was done by introducing a three year supply test in advance of anticipated wider changes in policy to be promoted through the Housing White Paper, which was published barely two months later in February 2017. At the time, it was also expected that the NPPF would be amended, something we are still awaiting.

By the time of the case being heard in November 2017, circumstances had changed significantly, with the Supreme Court overturning the Court of Appeal’s findings in respect of “relevant policies for the supply of housing” which could be regarded as “out-of-date” (the Hopkins Homes case, May 2017).

As the WMS had been prepared at least partly in response to the Court of Appeal’s “wider” interpretation in that case, the Supreme Court’s “narrow” interpretation and its different approach to how paras 49 and 14 of the NPPF should be applied led to the Minister issuing an update to the NPPG in August 2017 which clarified how the WMS is to be applied.

This emphasises that “decision makers should give significant weight to the neighbourhood plan notwithstanding the fact that the local planning authority cannot demonstrate a 5-year supply of deliverable housing sites” (NPPG para 083 Ref ID:41-083-20170810).

Against this context, today’s High Court judgment concludes (at para 46) that, in reality, the WMS and subsequent NPPG amendment serve to “augment” existing policy and do not change paras 49 or 14 of the NPPF. Mr Justice Dove clearly sets out the three stage process now engaged where there is a made Neighbourhood Plan:

  1. If the LPA cannot demonstrate a five year supply, then NPPF paragraph 49 applies.
  2. If there is at least a three year supply (but less than five), policies for the supply of housing are not deemed “out-of-date” (as per the WMS).
  3. The NPPG adds that para 49 still requires the “tilted balance” from para 14 to be employed, “and in striking that balance, significant weight is to be given to the NDP”.

This is an important clarification because it retains the relevance of NPPF paras 49 and 14 in the decision-making process where there is less than a five year supply, rather than treating a more than three year supply in a Neighbourhood Plan area as a reason not to engage para 14.

“Significant weight” is what it says on the tin and is for the decision-maker to determine how to apply. Para 47 of the Judgment helpfully confirms that “the WMS and NPPG are policies not rules or laws, and there may be circumstances which require their application to be adapted or afforded less weight”.

This is important in demonstrating yet again that the balance can tilt in favour of granting permission where circumstances affect the weight to be afforded to different considerations.

In dismissing all five grounds, the High Court also made clear that:

  • The Secretary of State can determine the matters regarded as material in making and changing policy (para 33)
  • What constitutes a “three year supply” in the WMS is straightforward and does not involve or require a separate and freestanding methodology (para 42)
  • The WMS provides an “incomplete summary” of the research on housing delivery in Neighbourhood Plan areas upon which it relied but its limitations were acknowledged even if these were “potentially suboptimal sources” of data (paras 54-57)
  • The WMS did not contradict the NPPF’s desire to “boost significantly the supply of housing” as it is not an objective which exists on its own and, in any event, “the Framework will, from time to time, pull in different directions”. It is for the Secretary of State to “balance the interests and objectives of the policy in reaching a view as to the appropriate decision or policy to adopt” (para 61)
  • There is no legitimate expectation that all changes to policy will be subject to consultation as other WMS have been introduced without consultation (para 75).

12 January 2018