Welcome to the seventh edition of ‘The Source’ – prepared by the Strategic Land Team at Gladman with the specific aim of better informing you with regard to current news and views in land & planning.
A case between Wiltshire Council and HPH Ltd / HAB Housing, developer behind The Triangle in Swindon, had received a challenge against the granting of outline permission for 35 custom built dwellings of which 9 were affordable dwellings, near the River Wylye. The case drew interest due to allegations of bias in the planning committee voting process.
The applicant, HPH Ltd, had been corresponding with Mr Walsh, the managing director of Selwood Housing Association, a not-for-profit association throughout the formulation of the application, regarding the affordable housing element, due to the company’s prominence in Wiltshire. HPH were keen to use Mr Walsh’s influence in Council because of Selwood’s ethos of affordable housing development, which ‘may capture the imagination of local councillors’.
At the Council’s Western Area planning committee the outline plan was approved 6 votes to 5. The issue of bias was raised due to the perceived vested interest of a councillor in the committee voting process, who was also a director of Selwood.
Throughout the planning committee meeting written communication was passed between the Selwood Managing Director and the Councillor, outlining the intentions of Selwood throughout the application process. Such communication goes against the ‘Council’s Planning Code of Conduct for Members’, whilst other Councillors argued that the Councillor’s interest in the case meant he should have faced automatic disqualification; a ruling first highlighted in Dimes v. Proprietors of Grand Junction Canal (1852). Clearly, the application would have faced refusal without the vote of the Councillor in question, since the chair used his casting vote against the application.
However, Mr Justice Cranston viewed the Councillor’s role as not subject to automatic disqualification. The managing director was not a party in the decision, only an advisor in the application formulation process. Therefore the Councillor was deemed not to be promoting affordable housing by his vote. Others argued that this case cannot be compared to those such as Chorley, where the Councillor was actually acting as an agent for the existing land owner.
The main dispute centred on whether the Councillor had a disclosable pecuniary interest before the application went to committee. The claimant argued yes, whereas Mr Justice Cranston stated that, at the time of granting planning permission, there was no formal contract with regard to the provision of affordable housing on the project and, therefore the Councillor had no disclosable pecuniary interest. However, taking the view of an informed observer, the fact that the Councillor was director of Selwood, the only affordable housing provider interested in the project, would give rise to an appearance of potential bias.
Considering the private interest of the Councillor and the gain from a positive decision, Mr Justice Cranston declared that the Councillor should not have participated in the vote to approve the planning application. Alongside four other grounds, impact on River Avon SAC, EIA screening and impact on heritage assets, the case was judicially reviewed and the approved decision quashed. The case raises the question of whether councillors should be scrutinised for any kind of vested interests in a planning application before the planning committee deciding its fate.
Shine Coming off Neighbourhood Plans?
In the run up to the May 2015 elections, Eric Pickles as Secretary of State (SoS) recovered and dismissed a number of residential appeals, often contrary to the recommendation of his Inspectors, citing significant conflict with emerging Neighbourhood Plans (NP) and often in the absence of a 5 year housing land supply.
A case at Winslow (Aylesbury District Council, Feb 2015) found no housing land supply but the SoS placed great weight on the NP’s settlement boundary policy, now part of the Development Plan, but clearly contrary to Paragraphs 14 and 49 of the NPPF, as a policy that restricted the supply of housing.
The SoS recovered the Station Road, Earls Barton (Wellingborough Council, Mar 2015) case, citing conflict with the emerging NP but crucially noting it had yet to be examined, put to referendum and made part of the development plan, in stark contrast to his Inspector who did not consider the application was premature given the NP’s status.
Roll on to 1st May, and the ‘Sayers Common’ judgment (Woodcock Holdings Limited vs SSCLG CO/4594/2014) where Mr Justice Holgate considered that the SoS erred in deciding to “tip the balance in favour of” the draft proposals of the NP. The SoS conceded that he did not apply paragraph 49 of the NPPF to the policies of the draft NP and therefore the appropriate weighting exercise was not carried out.
Mr Justice Holgate ruled that, when considering draft NPs before the end of their publicity period, prematurity is rarely justified as a ground for refusal, as stated in the Planning Practice Guidance (PPG). The Sayer’s Common judgement quashed the decision and awarded costs against the SoS.
Another key judgement was Villages Action Group v SSCLG (7th October 2015), where the SoS’s grant of permission for a residential development in Aldingbourne, West Sussex was challenged, on the basis that his inspector had failed to consider the emerging NP, which had identified the appeal site for school expansion.
Since the first draft of the NP was not published until after the Inquiry, Mrs Justice Lang found the Inspector had no duty to refer to the NP in her decision letter, as it attracted little weight at such an early stage of preparation. Furthermore, there was little prospect of the site being allocated for education, with no aspirations from the Local Education Authority to do so.
Post-election and post-publication of the Sayers Common decision, the new SoS is evidently guided by his own NPPF policies with the latest Recovered Appeal issued for Earls Barton at Thorpe Road (29th October) stating, “as there is not a 5 year supply of deliverable housing sites, the relevant policies for the supply of housing in the emerging EBNP [Earls Barton Neighbourhood Plan], including the proposed village development boundary, should not be considered up to date”. The decision was published one day before the Neighbourhood Plan referendum – an ‘advanced stage’ according to the PPG.
The second Earls Barton decision marks a move towards acceptance that where housing supply policies are out-of-date, this applies equally to Neighbourhood Plans as it does to Local Plans.
Scottish Planning Reform
The Programme for Government 2015-2016 (September 2015) announced the forthcoming review of the Scottish planning system stating:
“We will review the operation of the planning system in Scotland, identifying the scope for further reform with a focus on delivering a quicker, more accessible and efficient planning process, in particular increasing delivery of high quality housing developments. Our aims are to:
- Ensure that planning realises its full potential, unlocking land and sites, supporting more quality housing across all tenures and delivering the infrastructure required to support development.
- Streamline, simplify and improve current systems and remove unnecessary blockages in the decision-making process.
- Ensure that communities are more engaged in the process.
- Continue to meet our statutory and international obligations in protecting and enhancing Scotland’s nature and environment.”
An independent panel of 3 has been appointed by the Government to undertake the reform; Crawford Beveridge (economist), Petra Biberback (Planning Aid) and John Hamilton (SPF/ Winchburgh Developments Ltd). The choice of panel members has raised criticism by the RTPI Convenor stating that “while the members of the panel bring a lot of expertise, I am astonished and very disappointed that there is not a planner on the panel with recent practical experience of the planning system. The success of the review will depend upon knowledge and expertise of how the planning system works from the inside as well as the outside.” The Chief Planner from the Government confirmed that the panel have been selected ‘on the basis of their skills and experiences, and are not acting in a representative capacity’. He believes having a chartered town planner on the panel is not essential, the planning review enables the government to take a step back from planning. Furthermore, the ‘review is not so much of a review, it is more of a refinement’. He made it clear that development plans and supplementary guidance have both become too complex.
Social Housing Changes impacting on Site Viability
Whilst The Housing Bill makes it slow passage through Parliament, it is worth looking back at the emergency budget from July, in which George Osborne cut Social Housing rents by 1% for the next 4 years. Previously, social housing rents could increase by 1% above inflation so, on the face of it, this appeared to be good news for tenants and the overall housing benefit bill. However, the consequences of this enactment, intended or otherwise, are now starting to bite.
Social housing providers such as Weaver Vale Trust, Genesis Housing Association, Aspire Housing, Gentoo Group, New Charter Group, Knowsley Housing Trust, Peaks and Plains, Shoreline Housing Partnership, Circle Housing and Croydon Council are joining the ever-growing list of associations cutting staff and significantly reducing the number of affordable homes that they can afford to provide each year. Interestingly, it was Genesis that previously sponsored a Policy Exchange report “Freeing Housing Associations”, which encouraged housing associations to build more homes for sale on the open market.
Whilst the sub-text of this particular cut chimes with the Conservative push towards home ownership, the evident impact upon market housing delivery could prove counter-productive. The effect could be twofold – the reduction in funds will affect the ability of social housing providers to bid on housing sites, inevitably leading to delay or even paralysis in negotiations on delivery of housing land.
Arguably worse are the consequences on housebuilders’ sites with permissions and affordable housing arrangements already in place. Many Registered Providers will no longer have the anticipated income stream to fund the long-term contract arrangements they have with private developers, putting sites currently under development at risk.
With the Office for National Statistics’ announcement last week to reclassify housing associations as ‘public non-financial corporations’, thus bringing their £60 billion of debt onto the government’s books, one could ask where this is all leading. The privatisation of social housing, the closure or mergers of providers, or even a way for Government to reintroduce a nationalised house building programme?
Housebuilders of all creeds are required to lift the country out of its housing crisis. The targeted shrinking of the social housing sector will only serve to reduce the overall supply of housing and few housebuilders have the capacity to pick up the slack left by the void.
Secretary of State waives Paragraph 118 test
In allowing a recently issued appeal decision, the Secretary of State in Maidstone took the appellant’s view that “the small loss of irreplaceable habitat” would be at least neutral, if mitigated. The Inspector had relied upon a robust defence by the appellant’s ecology witnesses and subsequent weak concessions by the Council’s expert to conclude that “the biodiversity balance” swung in favour of losing the ancient woodland as it would be outweighed by standard sustainability benefits.
NPPF Paragraph 118 (bullet point 5) states that:
“planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss;”
Paragraph 118 is clear cut in its direction, although its interpretation in this instance charts a new course in balancing the harm to ancient woodland.
Disappearing Planning Permissions
Recent DCLG seminars have announced that some 30-40% of planning permissions are disappearing. This table below shows the number of residential permissions and the corresponding number of completions in England and Wales since 2006.
Even allowing for a lead-in time from a given permission to be translated into completions, these two figures should start to align if enough time has elapsed since the preceding economic slump. However, even at the peak of housebuilding before the last downturn, there was still a significant lag between the number of dwellings with permission and the level of completions.
Completions only began to align with permissions when confidence was at its lowest and fewer planning applications were being submitted.
Having welcomed in the streamlining of national planning policy, it seems that government intervention to the application process does not inevitably lead to an increase in housing completions. The main impediment to delivery must therefore lie after the grant of planning permission. This would suggest that to see a development through to its conclusion, confidence in a scheme’s viability is key.
Could it therefore be, that the pre-commencement conditions that LPAs now impose be blocking the system, especially for smaller housebuilders? Each condition requires discharge through submission of details and approval from the LPA, leading to delay and perhaps reconsideration on the part of the developer. Such conditions often cover matters not actually necessary for approval up-front, but which could be agreed during the construction process (e.g. landscape management plans etc).
Equally, the problem of converting more permissions to completions could be down to different monitoring methods between councils, reduction in site sizes, residential permissions being treated as long term investments or legal, ownership or ransom type issues.
Whatever the reason, somewhere along the line permissions are going missing and not reaching their inevitable conclusion. DCLG is currently looking into the problem, but without removal of the uncertainty created by these arbitrary barriers through revised and enforced Government guidance, the housing market may never be able to deliver the housing boost this country needs and that the Government has promised. Should Councils start planning for a 7 year housing land supply?
We would like to hear your views on reasons for this?
House Builder News
Customers, mortgages and margins up at Persimmon
Persimmon has opened 105 new housing developments in the second half of the year to date and expects to open 20 more by the end of the year as the firm looks to continue to grow.
In a trading statement today, Persimmon said the level of customer interest in its sites is “encouraging” with visitor numbers 5% ahead of last year. Mortgage approval volumes for customers are also up, with September approvals 13% ahead of last year.
The group says it is driving to capture productivity improvements with its Space4 insulated panel manufacturing facility generating increased efficiency gains.
Land availability is improving thanks to the National Planning Policy Framework with local plans “identifying sustainable locations for residential developments in increasing numbers”.
Persimmon says its operating margin continues to move forward and expects to improve on the 20.5% achieved in the first six months of the year.
Interesting Appeal Decisions
At Gladman, we monitor all residential appeal decisions issued by the Planning Inspectorate, to better understand current interpretations of government planning policy.
Suitable site doesn’t need to demonstrate a five year supply
An appeal for 10 semi-detached dwellings in the small settlement of Wem in Shropshire, was allowed after the inspector found it to have an acceptable impact on the character and appearance of the area as well as bringing social and economic benefits to the market town. As the scheme was deemed acceptable against the main issues, the inspectors stated that it was not necessary to consider the 5 year land supply. Although the council claim to be marginally able to demonstrate a supply, the inspector doubted the councils ability to deliver the full Core Strategy target by 2026.
Suitable site fails on design details
An appeal for 11 dwellings in Horsehay, Telford and Wrekin, which would make an effective use of the land and contribute to housing supply in a reasonably sustainable area, was dismissed because the environmental harm on character and appearance would outweigh the benefits. The layout, design, incongruity and insubstantial gardens easily visible from the street would fail to create an attractive sense of place.
AONB site doesn’t stack up
An appeal for up to 50 dwellings in Looe, wholly within the Cornwall Area of Outstanding Natural Beauty (AONB) and within the Heritage Coast has been dismissed. The inspector did not consider that exceptional circumstances had been demonstrated, with no evidence submitted regarding the existence or absence of alternative suitable sites. Attaching considerable weight to the contribution the site could have made towards the provision of affordable housing, and some weight to the absence of a five year supply of housing land, the inspector considered these to be outweighed by the adverse effect that the development would have on the conservation and scenic beauty of the AONB. The poor layout and omission of identifiable public open space also weighed against the scheme.
AONB site allowed despite harm
Two appeals regarding the same site in Hawkhurst, Kent were allowed despite an inspector judging that up to 62 dwellings which constituted major development would significantly harm the local character of the High Weald AONB. It was determined that the council’s policies regarding housing were out of date given that they could not demonstrate a 5 year supply of deliverable housing sites. The inspector held that a recent SHMA rendered the adopted core strategy housing requirement out of date. He acknowledged that however well designed and landscaped, the proposal would cause significant harm to the intrinsic beauty of the appeal site, limited harm to the wider AONB and limited harm to the setting of heritage assets. This was afforded considerable weight. However the social and economic benefits of the scheme were afforded substantial weight. This included boosting the supply of market and affordable housing in a part of the borough which accorded with the core strategy spatial strategy. Overall the development was considered sustainable when taken in the context of the NPPF as a whole, with material considerations indicating permission should be granted.
Uncontended site makes uncontentious win
An appeal for 40 dwellings in Bidford on Avon, Warwickshire has been allowed. Following refusal by Stratford on Avon District Council, and as part of the appeal process, the council stated that it would not defend any of the initial reasons for refusal. The inspector reviewed the site finding that the proposal was in a sustainable location, provided a section 106 responding to each of the obligations sought, would have an acceptable effect in terms of flood risk and did not conflict with any policies of the development plan. Harm was identified in terms of character and appearance due to the urbanising effect of the development, and the loss of agricultural land. It should be noted that the council agreed there was not a five year supply of deliverable housing sites for the sake of this appeal. On balance the inspector decided that as the proposal constituted sustainable development and provided more benefits than harm, the appeal was to be allowed.
West Midlands former Green Belt site allowed
An appeal for 190 dwellings in Tidbury Green, Solihull has been allowed by the Secretary of State following recommendation for approval by an inspector. The proposal was originally opposed by the council on the grounds that the site was in green belt. However following a legal challenge in the High Court and subsequently the Court of Appeal, parts of the Solihull Local Plan (2013) were quashed and remitted to the local authority. There were two consequences of this; the majority of the site was no longer designated as green belt, and the council no longer had an adopted housing target against which to assess its five year supply of housing land. Following this the council resolved not to oppose the appeal. As such there remained no material planning reasons that indicated permission should be refused, and the position of the council shifted to recommend permission be granted.
It should be noted that a small area of the site remained within the green belt and was unaffected by the quashing of parts of the LP. This area was proposed to serve two functions; half for the Sustainable Urban Drainage System; an engineering operation not classed as inappropriate development. The second half was flagged for an area of open space. This change from agricultural land is considered inappropriate development within the parameters of the Framework. However there are material considerations which amount to the very special circumstances necessary to allow this: the provision of opportunities for outdoor sport and recreation which are lacking in the area; the preservation of openness; and, in the interest of making the most efficient use of the remainder of the site. This matter is therefore considered neutral in the planning balance.
Overall the proposal was considered to represent sustainable development, and the presumption in paragraph 14 is fully engaged. The proposal accords with the development plan and there are no policies in the Framework which indicate development should be restricted, therefore the appeal was allowed.
The Source is a publication brought to you by Gladman Strategic Land; experts in land & planning.
To ensure that you continue to receive emails from The Source please add firstname.lastname@example.org to your address book. Click here to
Registered Company number: 3341567
Registered Office: Gladman House, Alexandria Way, Congleton, Cheshire, CW12 1LB