Richborough Estates Ltd v Secretary of State for Housing, Communities And Local Government

National planning policy may be changed by a written ministerial statement, provided it does not frustrate planning legislation, introduce improper planning considerations or become irrational. The policy-maker is not required to consider every matter which a claimant regards as material.

Planning policy must be interpreted in context and with its practical purpose in mind. Where the relevant criteria apply, the policy required significant weight to be given to a recently made neighbourhood plan when applying the tilted balance, even though the local planning authority lacked a five-year housing land supply. A reference to a three-year supply meant at least three years measured in the ordinary five-year supply assessment.

A legitimate expectation of consultation requires an unequivocal assurance or sufficiently consistent prior practice. The evidence did not establish such an expectation for changes to national housing policy.

The claimants, housebuilding companies, challenged a written ministerial statement issued on 12 December 2016 concerning the weight to be given to neighbourhood plans where the local planning authority lacked a five-year housing land supply. They also challenged associated amendments to the National Planning Practice Guidance made on 10 August 2017.

The claim alleged legal error, irrationality, mistake of fact, uncertainty and breach of a legitimate expectation of consultation. The challenge was considered in the light of the Court of Appeal and Supreme Court decisions in Hopkins Homes, including the Supreme Court’s clarification that the weight given to planning policies was ordinarily a matter of planning judgment.

1. The claim was dismissed. None of the five grounds of challenge was established.
2. The defendant’s choices in formulating national planning policy were subject to the statutory planning framework and the ordinary public-law limits of rationality. Following West Berkshire District Council v Secretary of State for Communities and Local Government, the legislation did not prescribe the merits criteria or all matters which the policy-maker had to consider. The defendant was therefore entitled to decide the relevance of matters such as further research, a methodology for neighbourhood housing need and a wider policy package.
3. The written ministerial statement was lawful when issued. It reflected the then-current Court of Appeal interpretation in Hopkins Homes. The later Supreme Court interpretation did not retrospectively invalidate it, since the defendant could not be expected to anticipate the outcome of the appeal.
4. Read with the amended guidance, the policy was capable of sensible application. The three-year supply criterion referred to at least three years’ supply assessed against the five-year housing requirement under paragraphs 47–49 of the Framework. It was not a separate or free-standing calculation.
5. After Hopkins Homes in the Supreme Court, it was unnecessary to decide whether a neighbourhood-plan policy was a relevant policy for the supply of housing merely to determine its weight. Where the criteria in the statement and guidance applied, decision-makers were required to give significant weight to the neighbourhood plan when applying the tilted balance. This supplemented, rather than amended, paragraphs 14 and 49 of the Framework.
6. The evidence concerning housing delivery was qualified and its limitations were disclosed in the underlying research. Reliance on the available evidence did not amount to a material mistake of fact or irrationality. Nor was the absence of a minimum number of housing allocations irrational; the size and realism of allocations could be considered when assessing weight.
7. The claimants had no legitimate expectation of consultation. Under CCSU v Minister for the Civil Service and Bhatt Murphy v Independent Assessor, an unequivocal assurance or sufficiently consistent practice was required. Previous unconsulted written ministerial statements affecting housing policy prevented the alleged practice from meeting that threshold.

First-instance judicial review. The claim challenged the defendant’s written ministerial statement and associated guidance. The judgment itself records the subsequent Supreme Court decision in Suffolk Coastal District Council v Hopkins Homes Ltd and related appeal proceedings, but this claim was dismissed by the High Court.