A High Court judge has today dismissed a challenge by housebuilders to a written ministerial statement on the weight to be given to neighbourhood plans in planning decisions.

Then planning minister Gavin Barwell issued the written ministerial statement (WMS) in December 2016, stating that, in certain circumstances, neighbourhood plans should not be deemed to be out of date, even in the absence of a five-year housing land supply.

The statement applied to neighbourhood plans that allocated sites for housing and where the local authority could demonstrate a three-year supply of housing land.

In mounting a judicial review challenge to the WMS, 25 housebuilders argued, amongst other things, that Javid’s approach was irrational and would seriously undermine the national drive to build more homes.

However, dismissing the challenge today at London’s High Court, Mr Justice Dove said he could detect no legal flaw in the WMS and ruled that the housebuilders’ arguments were unsustainable.

Javid had rationally taken the view that extensive research suggested that NDPs in general are helping to boost housing supply, the judge ruled. Arguments that the WMS was so uncertain as to be incapable of ascertainable meaning were also rejected.

The housebuilders’ plea that the WMS conflicted with a key objective of the NPPF – to increase housing land supply – fell on fallow ground and the judge also rejected arguments that the government had given an unequivocal assurance that a WMS in relation to national housing policy would not be issued without prior consultation with the house building industry.

Christopher Young, barrister at No 5 Chambers, who acted for the housebuilders consortium, acknowldged that the judge had rejected the claim the WMS was unlawful. made partly on the grounds that it was based on research which was misleading. But he said the judge had made clear the wording of the WMS was “an incomplete summary” of the research analysis it was allegedly based upon.

Young said the consortium would seek advice on appealing to the Court of Appeal against the part of the judgement dealing with “legitimate expectation” of consultation.

The judge “cited two examples of there being no consultation over the last 30 years”, Young said.  “Relying on these instances, he concluded the claimants could not establish a legitimate expectation of consultation based on past practice. The claimants will seek advice on appealing to the Court of Appeal against that part of the judgment.”

Richborough Estates Limited & Ors v Secretary of State for Housing, Communities and Local Government. Case Number: CO/452/2017

Source: Court Reporter, Planning Resource, 12 January 2018