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  • Mar 2016

The Source

Have a look at our March 2016 Issue of The Source.

The Source

Welcome to the tenth edition of ‘The Source’ – prepared by the Strategic Land Team at Gladman with the specific aim to inform you of current news and views in land & planning.

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This Editions News...

Housebuilder representatives line up to highlight shortcomings in the planning system

January and February have seen leading lights in the housebuilding industry highlighting specific weaknesses inherent in the planning system.

Steve Morgan, chairman of Redrow revealed to The Telegraph that 9,000 of his company’s 21,000 plots had planning permission but had stalled because of planning issues. “Just because you have a permission, it doesn’t mean you can start,” he said, pointing the blame partly at government cuts to LPAs slowing the planning process: “there are not the number of planning officers around to deal with applications that there were”. He also highlighted environmental surveys and the increasing amount of conditions to be met.

At the House of Lords economic affairs committee, Jenny Daly of Taylor Wimpey echoed these views: “We are finding increasingly that local planning authorities are woefully under resourced. Local government cuts have had quite significant impacts on local planning authorities. The processing of planning applications and the negotiation of Section 106 agreements has slowed in itself because there are insufficient people to process them.”

Ms Daly also stated, “We have found that from the very start of the process local authorities try to suppress the level of housing requirement that they need to find locally. That is then rolled into the local plan process in site-specific allocations, so we have an authority that is seeking to achieve the minimum rather than the optimum or necessary housing requirement, allocating sites that are probably just capable of meeting that number and rationing their housing allocations.”

At the same committee, John Stewart, director of economic affairs at the HBF said: “Interestingly, the number of smaller housebuilders rose very rapidly in the 1980s. The plan-led system we introduced in 1991 has had a very serious impact. It has essentially gone from being driven by the private sector finding land and putting it forward to local authorities rationing and controlling the supply of land.”

“There has been an 80% fall in the number of small and medium-sized housebuilders since 1988, so it is a long-term structural change. That has a lot to do with the complexity of planning, the cost of finance and so on, but it also has a lot to do with local plans and the tendency to allocate just a few large sites.”

The written evidence from the committee is available and makes interesting reading:

On top of all that, Boris Johnson’s office issued a report, the ‘Good Growth Agenda’, showing that 91 per cent of London boroughs’ planning officers say they need more “place-shaping” skills.

Conversely, if this interview with Planning and Housing Minister, Brandon Lewis is anything to go by, the Government has shifted its sights, arguing that the planning system is no longer a constraint on housing supply, saying: “If you speak to people like the Home Builders Federation, land is not the big issue, 250,000 homes got planning permission last year.”


High Court overturns BANES decision for raising irrelevant matters

A High Court judge has ordered the Government to reconsider two applications for housing sites in Bath and North East Somerset (BANES), after he ruled that a Planning Inspector wrongly considered issues in his decision that had not been covered at a public inquiry. The Inspector incorrectly took into account the 5 year supply of housing land in 5 policy areas rather than simply the district as a whole and consequently, failed to take into account the contribution of the appeal schemes to the 5 year supply of housing land. Other irrelevant considerations were that the Core Strategy’s spatial strategy for directing a certain level of development to Bath would be undermined as a result of the appeal schemes being delivered in the Somer Valley, despite the LPA not raising any concerns on this matter. Equally, the harm cited to the spatial strategy by front-loading housing delivery in the Somer Valley area was also irrelevant and not originally a concern of BANES. Furthermore, the Inspector made no attempt to determine whether the appeal schemes accorded with the development plan and “misdirected himself” by failing to apply the presumption at NPPF paragraph 14.

However, the decision, at paragraph 28, concerns a policy relevant to housing supply can still be up to date even where a five year housing land supply doesn’t exist because, “paragraphs 14 and 49 of the NPPF do not prevent a decision-maker from identifying sound evidence and reasons as to why the justification for and objectives of (for example) a housing distribution policy are of continuing importance and therefore weight. In that sense when a decision-maker reaches the stage of assessing the weight to be attached to that policy, he or she may properly arrive at a reasoned conclusion that the policy is up-to-date, notwithstanding paragraphs 14 and 49 of the NPPF.” This novel interpretation will be of interest in future decision-making.


Valued Landscapes taken to new heights

What is a valued landscape? Many contrasting views have been put forward in Gladman Development’s recent appeal decisions hinging on the consistency with Framework Para 109 which states; “the planning system should contribute to and enhance the natural and local environment by (inter alia): protecting and enhancing valued landscapes……”. The earliest appeal decision which seriously tackles the subject is arguably the most instructive. The Inspector in Gladman’s Leonard Stanley appeal (APP/C1625/A/13/2207324, 14 Jul 2014) noted that; “I accept that, currently, there is no agreed definition of valued as used in this paragraph. In the absence of any formal guidance on this point, I consider that to be valued would require the site to show some demonstrable physical attribute rather than just popularity.”

There is no further definition in the Framework, although best practice in ‘Guidelines for Landscape and Visual Impact Assessment’, 3rd Edition (GLVIA3) state “The fact that an area of landscape is not designated either nationally or locally does not mean that it does not have any value” (para 5.26). Mr Justice Ouseley sought to apply these guidelines in his judgement which challenged the aforementioned Leonard Stanley appeal decision (Stroud DC v. Secretary of State and Gladman Developments Ltd [2015] EWHC 488 (Admin) and it is through case law, that we know more about what a valued landscape isn’t, than what it is: “There is no question but that this land has no landscape designation.…….. It has no designation at all. The Inspector, if he had concluded, however, that designation was the same as valued landscape, would have fallen into error. The NPPF is clear: that designation is used when designation is meant and valued is used when valued is meant and the two words are not the same.”

Inspector Wildsmith commented In an appeal decision (APP/J0405/W/15/3002218: 7 Dec 2015), in Ivinghoe (which adjoined a Conservation Area) that: “Drawing all the above points together, I conclude that the proposed development would have an adverse effect on the character and appearance of an area of land which is valued locally, as it forms a fundamentally important part of the setting of the village.”

One Inspector of a recently allowed Gladman appeal in Coalville (APP/G2435/W/15/3005052: 5 Jan 2016) rejected the Council’s ‘valued landscape’ case revolving around the site’s designation as part of an Area of Particularly Attractive Countryside (APAC). Inspector Stephens concluded that: “little weight can be attached to Policy E22 and the APAC designation in terms of a ‘valued landscape’” and went on, “I disagree with this analysis as it over-inflates the value of the local landscape. Firstly, it fails to examine adequately the weight to be attached to the APAC designation. Secondly, the site may be more valuable in landscape terms than the urban area which it abuts but this does not mean that it is a valued landscape. The appeal site is not rare. The area immediately to the east in the Charley LCA is extensive, accessible and of a demonstrably higher value.”

In Gladman’s Tutshill appeal decision (APP/P1615/W/15/3003662: 14 Jan 2016), Inspector Baird took a more rounded approach in his interpretation of the NPPF: “The Framework has to be read as a whole and paragraph 17 refers to recognising the intrinsic character and beauty of the countryside. Paragraph 109 starts by reiterating the wider objective of enhancing the natural environment, which I take to mean the countryside in general and then it goes on to refer to valued landscapes, which must mean something more than just countryside in general.”

Inspector Hetherington on Gladman’s appeal site in Leek (APP/B3438/W/15/3005261, 18 Jan 2016) narrows the definition of value yet further: “…with reference to the decision in Stroud DC v SSCLG and Gladman Developments it seems to me that irrespective of the value that derives from the views across the site to the town and the rural landscape beyond (as already discussed), and irrespective of the popularity of the adjoining recreation ground with local people, the appeal site does not itself contain particular physical attributes that would ‘take it out of the ordinary’. On balance, it does not therefore amount to a ‘valued’ landscape in the Framework’s terms.”

Despite this general thrust towards a meaning, some decision-makers consider “value” simply because it features in a Landscape Character Assessment (LCA) (despite everywhere being classified by an LCA). In his appeal decision for Great Totham, Essex, (APP/X1545/W/15/3032632, 25 Jan 2016) Inspector Rose noted that “Para 27. The site lies within an area defined by the Braintree, Brentwood, Chelmsford, Maldon and Uttlesford Landscape Character Assessments (September 2006) as wooded farmland. The key characteristics of this area are indicated to include predominantly agricultural fields enclosed by woodland patches or hedgerows with mature trees, and with colour-washed buildings both in villages and scattered in the landscape.”
“Para 28. The site also forms part of the Chelmer-Blackwater Ridges Special Landscape Area (SLA) as referred to in Policy CC7 of the RP. I note that paragraph 3.44 of the RP [time-expired ‘Replacement Plan’] states that LCAs would supersede SLA designations and the Council accepted at the hearing that the site’s SLA designation now technically no longer applies.”
“Para 29. Nevertheless, these references all contribute to a recognition of the significance of the appeal site as a valued landscape for the purposes of the Framework, and this value is also reflected in the various representations made by the local community as part of the appeal.”


Planning Practice Guidance Update

The Planning Practice Guidance (PPG) was updated on the 12 February 2016, with notable changes to the recovery of appeals and Neighbourhood Plans content.

PPG now references a statement to parliament on the 11th January 2016, where Planning and Housing Minister Brandon Lewis extended powers to recover planning appeals for residential development over 10 units in areas where a qualifying body has submitted a neighbourhood plan proposal to the local planning authority, or where a neighbourhood plan has been made.

Included within a host of updates to the Neighbourhood Planning section of PPG, is the requirement to ensure policies relevant to housing supply in neighbourhood plans take account of the latest and up-to-date evidence of housing need, and the requirement to consider allocating reserve sites to allow for flexibility in an emerging Local Plan.

The PPG now acknowledges that Paragraph 49 applies to policies in made neighbourhood plans (as per Woodcock Holdings Ltd vs SoS judgement). However, this is then somewhat unclearly countered by reference to Framework taken as whole, citing paragraph 198 which explains that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted. The update appears to reflect some of the comments made by the Secretary of State in the re-determined Woodcock Holdings appeal (APP/D3830/A/12/2189451) which was published a couple of days before the update.

It seems the recent PPG updates may lead to further uncertainty for decision makers, as essentially it suggests that Neighbourhood Plans have an elevated status, above that of the development plan. A notion which was accepted as incorrect by the Secretary of State at the time of the Woodcock Holdings judgement, Eric Pickles.

These changes may also lead to consideration of housing needs at a single moment in time, which could eventually be significantly higher following Examination in Public of an emerging Local Plan. In the event housing needs are found to be substantially higher it is unlikely that a LPA will seek to allocate additional land in a recently made Neighbourhood Plan due to the political issues which would emerge. This will likely result in less sustainable settlements without Neighbourhood Plans having to accommodate future growth.


Burghfield Common judgment confirms the OAN overrides post-NPPF housing requirement

The High Court has handed down its judgement on Burghfield Common, endorsing the original appellant’s own provision of Objectively Assessed Need (OAN) evidence for calculating a five year housing land supply. The decision demonstrated that an Inspector can reject a post-NPPF adopted housing requirement if there is new evidence on OAN, so long as it is compliant with government guidance and can be regarded as “significant new evidence”. This is particularly relevant where the Local Plan Inspector has inserted an ‘early review’ mechanism into recently adopted plans.

In the first case of its kind, West Berkshire Council’s four grounds of challenge were all dismissed, and the subsequent clarity provided makes a significant impact on the planning policy landscape for post-NPPF plans reliant on Regional Plan housing requirement figures. The appellant at the original inquiry had sought to present evidence demonstrating what they reasonably considered to be the up-to-date OAN based on latest household projections and economic growth, since the examining Inspector of the Local Plan had established a three year ‘review mechanism’ to update the housing requirement after adoption, which West Berkshire had allowed to pass by without action. In the absence of a full Berkshire SHMA, the Inspector accepted the appellant’s own OAN calculations, meaning a requirement of 833 dwellings per annum, against which he also concluded the Council could not demonstrate a five year housing land supply.

The judgement also confirmed the position in the Hunston case, whereby it is within the gift of the Inspector to identify an appropriate OAN. Equally, the judgement confirms that it is not only for LPAs and their own SHMA evidence to calculate OAN and the lack thereof cannot be used as a defence against meeting their housing needs. The judge noted: “The Inspector was required to identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the Council was able to demonstrate whether it had a five year supply of housing land.”


Does England require a 20% buffer for persistent under-delivery?

Gladman have undertaken a five year housing supply calculation for England as whole, based on 2012 Household Projections, which result in an overall housing requirement of 210,000 dwellings per annum. The country has failed to meet its requirement each year from 2012 to 2014 with an average of 114,000 dwellings being provided each year. This has amounted to a total shortfall of 287,240 dwellings over the three years and warrants the application of a 20% buffer to achieve the national imperative to improve supply.

Given an overall requirement of just over 1 million homes over five years, England would only be able to supply 1.8 years of its overall five year need if housebuilding continued at it historic rate, leading to ever-spiralling house prices and social consequences.

House Builder News

St. Modwen

St. Modwen double profits

Midlands-based property developer, St.Modwen has increased its pre-tax profits by 91% to £258m in the year to November 2015, driven largely by revaluation gains after it secured unconditional planning permission for more than 3,000 homes, plus office and retail space on its redevelopment project in London’s Nine Elms brownfield site near the south bank of the River Thames.

The announcement came alongside news that St.Modwen’s long-standing chief executive, Bill Oliver, will retire in November after 13 years in the role.



Countryside Properties issues shares

Private equity fund Oaktree Capital Management has listed Essex-based Countryside Properties on the stockmarket at 225p per share giving the company a value of £1.01bn. this follows an earlier listing between 1972 and 2005, after which the company went private throughout the duration of the financial crisis.



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.



Influx of new residents would not lead to social unrest

Concern that the approval of a scheme for 110 dwellings in the Wychavon district would harm social wellbeing in the village of Drakes Broughton did not convince an Inspector to dismiss the appeal. Concerns over social wellbeing lay in the supposed pace of growth and rapid influx of new residents where in the last 4 years 97 new dwellings had been built with a further 90 permitted. The Inspector states that despite large amounts of objections to the scheme, there is no evidence that new residents would not be welcomed into village life. Despite there being a land supply (the Council claimed over 6 years and the appellant did not dispute this) the appeal was allowed.

Economic benefits of housing outweigh heritage to allow major extension to Warwick

A mixed use appeal for 900 dwellings, primary school, local centre and a large park and ride was allowed by the SoS who disagreed with the Inspectors recommendation that it be refused. The difference between the Inspector and the SoS was that the SoS considered the lack of adequate housing land in the district was a key concern in the economic dimension to sustainable development, which when combined with other benefits (such as the benefits of the park and ride, benefits to biodiversity and economic benefits) was enough to outweigh the less than substantial harm to the Grade 1 park and nearby listed building and the very substantial harm to the character and appearance of the area whereas the Inspector believed that the proposal conflicted with the economic dimension of sustainability which seeks to ensure delivery of land in the right places.

Potential tree felling fells potential development

An appeal in Alsager, Cheshire East, has been dismissed after the Inspector deemed that the environmental impacts upon the area demonstrably outweigh the social and beneficial aspects of the desired proposal. The proposed site would have replaced half of the 3 hectares of woodland that would be lost due to development of 70 dwellings. The Council could not demonstrate a five year housing supply, local policy was out of date and even though the development may be favourable for the development of affordable housing, loss of hedgerows and endangered animals outweighed the potential possibility to improve housing land supply.

Big trouble in little scheme

A proposal for 10 dwellings in Redditch has been dismissed at appeal by the Inspector, despite making use of land that is unmaintained and overgrown.

The Inspector felt that significant harm would be caused to the character and appearance of the area, with the site being set in open countryside and bordering the Green Belt. Concerns were raised about the location and potential harm that would be caused to two oak trees, that it was argued added to the beauty of the area. Further concerns were raised about the design and layout of the dwellings and it was felt that the modern design would not fit well with the existing dwellings in the area.

On balance the Inspector felt that the negative impacts of the proposal significantly outweighed the benefits and the appeal was therefore dismissed.

Buckinghamshire proposal deemed insensitive

Despite the Council being unable to prove a 5 year supply and the potential benefits of the development, in terms of contributing to housing land supply, the future occupants supporting local facilities and services and the affordable housing contribution, this appeal for 27 dwellings was dismissed by the Inspector. She concluded that the development would significantly intrude on the open countryside, this harm outweighed any benefits and conflicts with the Local Plan Policy GP35.

NPPF policy on intrinsic character and beauty outweighed by same NPPF policy

An outline application for 100 dwellings in Fylde was approved after it was concluded that the Council were unable to prove a 5 year housing land supply based on their most recent OAN. Although the development was found to some extent to run counter to the Framework’s core planning principle (paragraph 17) of recognising the intrinsic character and beauty of the countryside, the Inspector stated that this should not be considered in isolation given that paragraph 17 also supports sustainable economic development to deliver the homes that the country needs. The Inspector also raised concerns regarding highways safety, access and education. However it was found that all of the above were not serve enough to prevent the application from gaining approval.

Positive impact on conservation area allowed despite a demonstrable 5 year supply

An appeal for 20 dwellings in Davenham was allowed despite the Inspector highlighting the Council could in fact demonstrate a 5 year supply, even after the appellant had argued that demolitions and losses and small sites should be discounted from the calculations of deliverable supply. However, the Inspector agreed that the development does contribute to the character of the settlement and the frontage of the conservation area. Alongside this, the economic and environmental benefits of this development outweighed the evidence of a demonstrable 5 year supply and, as such, the appeal was allowed.

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