Minister: neighbourhood plans will be up to date with three-year housing land supply

A written ministerial statement by Gavin Barwell, published this week, is "an attempt by the government to provide certainty when a local plan is out of date but a neighbourhood plan has been made", according to planning law expert Benjamin Mansell of Pinsent Masons, the law firm behind Out-Law.com.

However, Mansell said that the statement had the potential to lead to further confusion and legal challenge, not least because it directly contradicts the National Planning Policy Framework (NPPF). The NPPF provides that where a local planning authority cannot demonstrate a five-year supply of deliverable housing sites, all relevant policies for the supply of housing in that area should be considered out of date. Instead, housing applications should be considered in the context of the presumption in the NPPF in favour of sustainable development.

At the same time, written ministerial statements did not necessarily have full legal force, Mansell said.

"Firstly, written ministerial statements are not consulted upon, nor do they hold statutory status," he said. "They are to be attributed a heavy weighing in decision making as an expression of government policy, but the decision maker is not compelled to comply with the policy. In an area as delicate as the relationship between local plans and neighbourhood plans, this adds another layer of complexity."

"Secondly, the written ministerial statement now directly contradicts paragraph 49 of the NPPF, with one requiring a housing supply of three years and the other five years. We will have to wait and see whether the Housing White Paper proposals will deal with reconciling the position. Whist the written ministerial statement is aimed at removing some of the tension between neighbourhood plans and local plans, it looks to create more problems than it solves and, as a result, this will inevitably be tested through the courts sooner rather than later," he said.

Introduced by the 2011 Localism Act, neighbourhood planning was designed to give local people more of a say in planning decisions affecting their local communities. Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not generally be granted. There are over 230 neighbourhood plans now in force across England and "many more in preparation", according to Barwell.

However, Barwell said that the NPPF provisions requiring a five-year supply of deliverable housing sites meant that communities which had "been proactive and worked hard to bring forward neighbourhood plans" were having their plans undermined by the actions of their local planning authorities. For this reason, plans should no longer be deemed out of date "unless there is a significant lack of land supply for housing in the wider local authority area", he said in his statement.

"As more communities take up the opportunity to shape their area we need to make sure planning policy is suitable for a system with growing neighbourhood plan coverage," Barwell said.

The new policy position applies immediately to decisions made on planning applications and appeals, and should be taken as a material consideration in relevant planning decisions, Barwell said. It will apply to neighbourhood plans that have been part of the development plan for two years of less and that allocate sites for housing, and where the local planning authority can demonstrate a three-year supply of deliverable housing sites.

Barwell also announced that the government would extend its scrutiny of planning appeals involving housing development in neighbourhood planning areas for six months, to allow time for the Neighbourhood Planning Bill to pass through parliament. Recovery will continue to be limited to proposals involving more than 25 homes, in line with the change made by Barwell's predecessor Brandon Lewis in July.

The Neighbourhood Planning Bill reached report stage in the House of Commons this week. MPs are seeking to make a number of amendments (17-page / 184KB PDF) to the bill. These include a new requirement for local planning authorities to consult neighbourhood planning bodies on decisions to grant planning permission, ending New Homes Bonus payments for developments on what would otherwise have been green belt land and a requirement for independent examiners of neighbourhood plans to be registered with the Royal Town Planning Institute (RTPI).