An event that is likely to have significant impact on the whole of Shropshire and beyond involves a planning application for a development at Teal Drive, Ellesmere, that was refused by Council and taken to appeal by the developers. Despite Shropshire Council being awarded partial costs against the developer, the appeal was successful in challenging Shropshire Council’s claim to have a 5 year housing land supply, the element in national housing planning policy that determines whether a local authority has the freedom to decide where to build houses. In the absence of a five year housing land supply, the National Planning Policy Framework (NPPF) takes precedence. I’ll explain the significance of that.
At the heart of the NPPF is the phrase “the presumption in favour of sustainable development”. It’s the killer.
Without going into the details of specific sections of the NPPF, it is enough to take on board that despite Shropshire having a development plan in the form of the Site Allocations and Management of Development (SAMDev) which is still, under the terms of the NPPF, “relevant”, the Teal Drive judgement agrees with the developer that the numbers on which the county’s housing need has been assessed are out of date. The effect is to return us to a pre-SAMDev situation in which the NPPF prevails, in which any planning proposal should be approved as “sustainable development” unless any adverse impacts significantly and demonstrably outweigh the claimed benefits, which puts the onus of proof back onto Shropshire Council, as the Local Planning Authority, to prove a case against a development, not on the developer to prove their case for.
It is as simple as that. The NPPF guidance says that a proposal should be approved as sustainable development unless the adverse impacts clearly and significantly outweigh the benefits.
Define “clearly”; define “significantly”. Not easy, is it? Subjective judgements open to argument? You’ve got it!
To make an aggrieved local community faced with an unwanted development feel as if it has a chance of arguing its case, the NPPF dangles a carrot by saying that if the development is not “sustainable” any claimed planning advantages can be considered non-existent, therefore the presumption in favour can be challenged. But developers pepper their supporting arguments with the word “sustainable” in every other sentence and so, supported by the government’s determination to encourage building wherever a brick can be laid, the planning “benefits” can be made to appear overwhelmingly in favour of the presumption which, bitter experience has taught us, makes it difficult-to-impossible to displace it, proving that you can be beaten around the head with a carrot as well as a stick. It still hurts.
In the Teal Drive case, the developer argued that Shropshire Council’s claim to have a 5 year housing land supply was based on historical figures that did not, under the terms of the Planning Guidance to the National Planning Policy Frameword (NPPF), constitute a 5 year housing land supply that could be said to meet current housing need, let alone future needs, because it was based on information that was out of date.
This was the killer section of the Appeal Decision (direct quotes in italics, critical bits in bold.)
CS = Core Strategy: The way a Local Planning Authority intends to meet its identified local housing need.
PPG = Planning Policy Guidance: The way a government expects Local Planning Authorities to align their local housing plans with government housing policy.
26. The appellant accepts that the Council can demonstrate a five year housing land supply against the CS housing requirement of 27,500 dwellings over the plan period. However, the appellant is of the view that the CS housing requirement does not represent the Full Objectively Assessed Need (FOAN) of the Council as required by Paragraph 47 of the Framework and therefore maintains that if the Council do not know what their FOAN is, then it cannot demonstrate a five year housing land supply. The appellant also considers the CS housing requirement to be out-of-date.
30. The CS was adopted prior to the publication of the Framework and the housing requirement that it contains is based on the now revoked West Midlands Regional Spatial Strategy (the RSS) …the RSS includes population projects from 2006, which are significantly dated. It is therefore clear that the evidence that underpins the CS housing requirement of 27,500 dwellings should be viewed with caution and I consider that the Government’s introduction of the Framework and the PPG are significant matters that affect the weight that can be afforded to the CS housing requirement…
In short, the introduction of the NPPF rendered Shropshire Council’s assessment of housing need, based as it was on the “old” Regional Spatial Strategy and carried over into the SAMDev, out of date and that a FOAN assessment should be carried out again to bring it up to date.
The Planning Inspectorate decision in respect of Teal Drive will have national as well as local implications because it calls into question the methodology of establishing whether a Local Authority has a 5 year housing land supply, because it raises the question of what time scale is appropriate and “valid”. Given the roller-coaster nature of the housing market, would even an ongoing ‘full objectively assessed need’ ever get to a point where it can be said that a forecast is right? I doubt it, nor could I ever see it saying that there was too much housing!
I’m sure the clown who drafts planning legislation and its guidance works on the principle: “Keep the buggers guessing.”
The appeal judgement says that “market signals” should be one of, if not the determining factor. Quite how, I can’t work out, given the constantly changing nature of “market signals”, subject as they are to government policy based more on the numbers on a spreadsheet than locally determined need based on, well, locally determined need.
So how do you determine “need” if it’s a moveable feast? Here in Highley the number of houses the community assessed it needed, and which its infrastructure could handle, was determined and by the time SAMDev first rolled out the bulk of that “need” had already been completed and occupied, leaving a balance of 30 houses to be built in order to meet that earlier-assessed housing “need”. Yet despite the housing land needed to meet that balance of 30 houses having been identified and classified, in the form of The Cedars (30 houses with Outline Planning Permission) or Rhea Hall (30 houses with Outline Planning Permission), we ended up getting the Taylor Wimpey estate of 58 houses on Jubilee Drive despite that application having originally been refused on application and appeal. It eventually succeeded due to the ‘absence’ of a 5 year housing land supply letting in the full weight of the NPPF. That taught us a lesson here in Highley.
The Rhea Hall developments total 29 houses (built and being built) and The Cedars looks as if it is coming on-stream with 30 houses. So on paper at least we have not only met our “need” but exceeded it by 87 houses. It’s a funny old world, but who’s laughing?
Shropshire Council can either take that Teal Drive judgement to Judicial Review or go through the lengthy process of re-visiting the original Core Strategy housing need of 27,500 houses to produce a new figure in order to meet a Full Objectively Assessed Need. But you can bet your sweet life that whichever figure Council comes up with it will be challenged by the developers. My feeling is that whatever figure is ultimately assessed, regardless of whether it meets the FOAN criteria, it will never be acceptable to developers and will be challenged again.
By opening the door to the NPPF, this appeal decision has opened up one hell of a can of worms, not least because of all the planning applications that have been refused since – and because of – the signing-off of Shropshire’s 5 year housing land supply. Doubtless to the delight of a government determined to push through with its manifesto commitments no matter what, the immediate prospect for local communities, planning officers and planning committees, is the reappearance of the ill-defined, how long is your piece of string, NPPF as the determinant of future planning applications. It doesn’t take much imagination to see how fast the developers are going to get their applications back on the table.
I don’t understand this government, I really don’t. They lie through their teeth and they do it whilst looking you in the eye. So what is a plan-led planning systems worth now? I’d say about the same as the Localism Act, nothing.
I’ll give the appeal judgement the final word on this because it says it all without so much as a nod in the direction of irony. I haven’t highlighted the bits that had me shaking my head in total disbelief because the whole section is a sick joke.
Where there is no robust recent assessment of full housing needs, the household projections published by the Department for Communities and Local Government should be used as the starting point, but the weight given to these should take account of the fact that they have not been tested (which could evidence a different housing requirement to the projection, for example because past events that affect the projection are unlikely to occur again or because of market signals) or moderated against relevant constraints (for example environmental or infrastructure)’.
Anyone who knows me well enough, certainly from the wind farm days when I was despairing over the emergence of the NPPF when it first appeared for “consultation”, will be familiar with what I’ve continued to say ever since, that if something is arguable then you’ll get an argument. Couch legislation in the vaguest of terms and it’s made arguable, but whilst both sides of the argument will be heard, only one voice will ever be listened to – the government’s.
But hey, who said we live a democracy?