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House builders lose legal challenge against government
A group of housing developers have lost a legal challenge against a government policy change limiting a presumption in favour of new housing development.
In a judgement published today, a High Court judge ruled that the claim – brought by a group of 25 house builders – was unsustainable, and dismissed the case.
The policy was changed through a written ministerial statement issued by former housing minister Gavin Barwell in December 2016.
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It stated that even without an identified five-year housing land supply, neighbourhood plans should not be deemed out of date in certain circumstances, and the ‘presumption in favour of sustainable development’ should not be applied.
It said where the local authority could demonstrate a three-year housing land supply, neighbourhood plans could be deemed up to date.
The ‘presumption in favour of sustainable development’ makes it extremely difficult for councils to deny planning permission and is opposed by many local campaigners against new housing developments.
The developers had argued Mr Barwell’s statement was based on an error of law, and that it relied on inadequate evidence and research with factual errors, and failed to consult with the industry.
However, Justice Ian Dove was unconvinced the builders’ complaints were sound and could find no legal flaw in the statement, so the case was dismissed.
Christopher Young, a barrister at No 5 Chambers, which represented the developers, said it would seek advice on appealing to the Court of the Appeal for part of the judgement – the issue of “legitimate expectation” of consultation.
The judge had said that the housebuilding industry “had not always been consulted on changes to national planning policy for housing and cited two examples of there being no consultation over the past 30 years”, according to Mr Young.
He added: “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 judgement.”
Mr Barwell issued the statement in his former role as housing minister.
In the original statement from December 2016, Mr Barwell said communities who have “worked hard to bring forward neighbourhood plans are often frustrated that their plan is being undermined because their local planning authority cannot demonstrate a five-year land supply of deliverable housing sites”.
“I am today making clear that where communities plan for housing in their area in a neighbourhood plan, those plans should not be deemed to be out of date unless there is a significant lack of land supply for housing in the wider local authority area,” Mr Barwell added in the original statement.
The group of claimants involved in the case was made up of house builders including Richborough Estates, Wealden Homes and Redrow.
