A number of initiatives aimed at increasing housing delivery were announced at the Conservative Party conference, including a Housing White Paper in the autumn. Behind the headlines, to meet the government’s 2015 target of 1m new homes by 2020, there is much to be done by both government and local authorities. The new secretary of state for communities and local government, Sajid Javid, emphasised in his speech the need for MPs and local leaders to make difficult calls, even if they are unpopular.
Indeed, contrary to planning policy, many authorities have failed to identify sites where housing can come forward over the next five years, resulting in developers and landowners bringing forward schemes to fill the gaps. Neighbourhoods and parish councils are seeking influence through neighbourhood plans. And even where sites are allocated for development in adopted or emerging plans, authorities can be reluctant to grant permission. These, and other reasons, lead to cases ending up on the desks of those in government following an appeal to the Planning Inspectorate.
A high hurdle
Scrutiny of initial appeal decisions by the Department for Communities and Local Government (DCLG) demonstrates that a robust case is still required to secure planning permission. Myriad site-specific factors must be weighed up in the planning balance, but common threads run through many decisions.
• Application of adopted policy. A site allocation can be definitive in the absence of adverse material considerations. An outline application for development in Northampton of up to 1,000 dwellings gained the secretary of state’s support based on its allocation in the recently adopted core strategy, noted to be an “in-principle” mandate for development. Other appeal decisions have, however, failed, where contrary to an up-to-date plan.
• Failure to demonstrate a five-year housing land supply. This provides a policy footing for many planning applications. The application of the presumption of sustainable development requires scrutiny of social, economic and environmental considerations. The delivery of new homes and construction jobs will attract weight, but is not necessarily determinative.
In particular, government support for neighbourhood planning remains strong and non-compliance with neighbourhood plans can lead to refusal. In an appeal in Arun, substantial negative weight was placed on the conflict with a recently adopted neighbourhood plan – despite that plan being based on an out-of-date assessment of housing needs and the authority being unable to demonstrate a five-year housing land supply.
In contrast, permission was granted for an unallocated site in south Norfolk despite a recently adopted joint core strategy in the absence of a five-year housing land supply. The secretary of state took account of social harm in the loss of community confidence in the robustness of the plan.
• Landscape allocations. The treatment of policies restricting development in the countryside is the subject of a court case heading for the Supreme Court (Hopkins Homes Ltd v Secretary of State for Communities and Local Government; Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] PLSCS 90).
Where such policies are deemed to constitute policies for the supply of housing under the National Planning Policy Framework, they are considered out of date in the absence of a five-year housing land supply. However, weight can still be given to such policies, which is leading to varied decisions.
By way of example, an application for around 1,500 dwellings at an unallocated site in Aylesbury was refused by the secretary of state. Significant adverse impacts to the character and appearance of the landscape, contrary to local plan policy, were identified, including the merging of Aylesbury with the village of Bierton. Weight was given to the specific purpose of the policies, being to avoid coalescence and protect the identity of settlements. Likewise, an application for housing in Nantwich, Cheshire was refused, with policies limiting housing development in the countryside being accorded reduced but still significant weight.
As demonstrated by successful appeals in South Norfolk, some harm to the countryside can be found to be acceptable. Recently adopted policies included restrictions on development in a strategic gap. The gap policies did not prohibit development, but supported only development that retained separation and openness. Overall harm, including through erosion of the gap, did not outweigh the scheme benefits. Likewise, for a decision in Crewe, limited weight was placed on conflict with policies arising from erosion of a green gap.
For developments in the countryside, limited or moderate weight can be attached to the loss of high-quality agricultural land. While rarely determinative, this can help tilt the planning balance in either direction.
• Site-specific factors. Some sites throw up unusual local issues, increasing uncertainty. A refusal for a scheme in Newmarket turned on local plan policies preventing development that threatened the long-term viability of the horse racing industry and concern about accidents arising from increased traffic, given the unpredictable nature of thoroughbred race horses.
Time is short
Pursuing permission for unallocated sites through appeal therefore remains a risky business for landowners and developers. Yet the current process of allocating sites through local or neighbourhood plans often serves neither developers nor communities well. The clock is ticking down to Brandon Lewis’s deadline of April 2017 for publication of draft local plans and confirmation is awaited as to what the government proposes to do if authorities fail to deliver. Also awaited is the government’s response to the recommendations of the Local Plans Expert Group. With the Neighbourhood Planning Bill passing through parliament, the new secretary of state and his team have a busy time ahead.
Claire Fallows is a partner at Charles Russell Speechlys
