Following the various letters to and from the previous government, as well as feedback on the East Hampshire draft local plan consultation in early 2024, the council sought legal advice as part of its challenge to reduce the housing figures for East Hampshire. We instructed leading counsel to advise on following questions:

1. 'Is the scope of 'exceptional circumstances' limited to those circumstances relating to the inputs - i.e. to the interpretation of population, household or affordability data - of the standard method; or could it extend to other land-use planning (physical, environmental, administrative) considerations that are relevant to delivering housing needs?' 

2. What are the legal risks if the council departs from the standard method? 

3. The standard method provides a useful starting point for the local plan – considering the circumstances of East Hampshire, what evidence could justify deviating from the standard methodology? 

4. How high is the risk to achieving a sound plan of deviating? 

Paul Brown KC, of Landmark Chambers, an expert in all aspects of planning and environmental law, and public and local government law provided the council with the following response:

Paul Brown KC is clear that the ability to depart from the standard methodology for the assessment of housing need in ‘exceptional circumstances’ should be linked to demographic and/or housing-market related factors only. He further states that environmental considerations, such as the presence of national parks, should not affect how ‘raw’ need is assessed. 

Overall, he considers there would be significant risk of the council's approach to the assessment of need being found legally unsound if the council were to proceed on the basis that the existence of the South Downs National Park (SDNP) was itself a reason for departing from the standard method. 

He went further to clarify that if the departure was found to be legally flawed or unsound as a matter of policy, the implications for the emerging local plan would be ‘catastrophic’.

In light of the above and the recent introduction of a new government, which is likely to lead to several changes to the planning system, the council will be keeping up with any changes to planning policy and guidance and reacting accordingly.