Local Plan intervention by the Ministry

William Upton KC takes a look at recent local plan action by the Ministers and the Secretary of State at the Department for Levelling Up, Housing and Communities.

With the announcements made on 19th December 2023, there are now ten local planning authorities which have had the Secretary of State intervene in their local plan process in the last three months. We will have to see how that develops. Mr Gove has also referred to his specific interest in the work of the GLA, and he has set up a working group to review the London Plan and identify where changes to policy could speed up the delivery of housing. 

This intervention by the Secretary of State has been made in the particular legal and policy context of the Planning and Compulsory Purchase Act 2004. The regime that the Act introduced for preparing development plan documents includes powers for the Secretary of State to intervene in the local plan making process.

Seven of the recent interventions have been made by the Secretary of State Michael Gove himself. On the same day as he announced changes to the National Planning Policy Framework (NPPF), he used his powers in section 15, which deal with Local Development Schemes. His seven letters of 19 December 2023 explicitly refer to the fact that there are only 12 Local Planning Authorities who have failed to adopt any local plan prepared in accordance with the 2004 Act, and that the seven he has written to are the ones “who are not currently taking their draft plan through the examination process”, namely Amber Valley, Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford. For now, his direction goes no further than to direct them “to revise their Local Development Scheme within 12 weeks of the publication of the revised NPPF.”

The more interventionist action against the remaining three LPAs has been taken by his Minister of State for Housing, in the name of the Secretary of State, against Spelthorne BC, Erewash BC and now West Berkshire Council, in remarkably similar terms. All three Councils were about to hold council meetings to consider withdrawing their draft local plans from examination.

However, these three authorities do not face intervention under the main intervention powers set out in section 21, which apply if the Secretary of State “thinks that a local development document is unsatisfactory.” Section 21 would then enable the Secretary of State to direct the local planning authority to modify the document in accordance with the direction, or to submit the document (or any part of it) to him for his approval. There are also powers to make a temporary order not to take any step in connection with the adoption of the document if the powers under section 21 are being considered (s.21A).

What the three authorities face is the exercise of what are described in the Act as “default powers” under section 27, and do not relate to whether the document is satisfactory. The “default powers” under section 27 arise if sub-section (1) is satisfied:

“(1) This section applies if the Secretary of State thinks that a local planning authority are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document.”

The Secretary of State then has a broad selection of powers of direction under section 27 (as amended by the Housing and Planning Act 2016). In the case of Spelthorne, Erewash and West Berkshire, the Minister has chosen not to take over the preparation of the plan document itself or to “reject the document”, as he could have done. He has directed each of them specifically:

“1. Per section 27(2)(b): Not to take any step to withdraw the plan from examination and more specifically to respond to the Inspector’s matters and issues by the end of September 2023 and report monthly (from the date of this letter) to my officials on the progress with the examination.

2. Per section 27(4)(b): On conclusion of the examination, to publish the Planning Inspector’s recommendations and reasons.

3. Per section 27(5)(b): On conclusion of the examination, to consider adopting the plan, including any main modifications recommended by the Planning Inspector deemed necessary to make the plan sound.”

It then states that the above directions:

“1. Do not prevent the Council from deciding to continue progressing the plan through examination; and

2. Will remain in force until withdrawn by the Secretary of State.”

Some high-level reasons, relating to the need to avoid additional delay in delivering the for plan delivery have been given. On their face, the powers in section 21 and 27 of the 2004 Act are indeed broadly worded. The Minister has nevertheless referred in these letters to the policy basis “to assist me in determining priority and whether intervention should take place” – what the Minister refers to as “the Local Plan intervention criteria in the 2017 White Paper "Fixing our broken housing market"”. No reference is made in the letter to any other policy criteria or other material considerations.

Most of us had thought that the 2017 White Paper had been overtaken by events, and consigned to the online library shelves. Curiously, there is no specific section on intervention. The relevant paragraphs can only be found in a section labelled the “Proposals from Chapter One”. Within those Proposals, it is stated in para A11 that “the Government intends to make decisions on intervention on the basis of these criteria”:

“A9. In February 2016, we consulted on our proposed criteria for making decisions on whether to intervene in plan-making, which was where:

• the least progress in plan-making had been made;
• policies in plans had not been kept up to date;
• there was higher housing pressure; and
• intervention would have the greatest impact in accelerating local plan production.

“A10. We also proposed that:

• decisions on intervention would be informed by the wider planning context in each area (specifically, the extent to which authorities are working co-operatively to put strategic plans in place, and the potential impact that not having a plan has on neighbourhood planning activity); and
• authorities would have an opportunity to put forward any exceptional circumstances before action was taken.

“A11. Having considered the responses to these proposals, the Government intends to make decisions on intervention on the basis of these criteria, as set out in the consultation – making use of its existing powers …”. (Para A11 also refers to the proposed powers in the Neighbourhood Planning Bill, which was never taken forward.)

There is no justification for why the letter was sent so late, hours before the council meeting, or why no opportunity was given for the  council to be heard before the intervention was made. Each authority has only been given the chance to respond after the event, and only with regard to future actions.

The next steps for the Department and for the local planning authorities remains to be seen. But it is difficult to envisage how a council should continue to advance a plan document before a Local Plan Inspector that it has publicly stated should probably be withdrawn.

William Upton KC is a barrister at Six Pump Court. He has been asked to advise on two of the intervention letters.