Published: Thursday, 11th May 2017
Supreme Court issues ruling on NPPF paragraph 49, Reaction to court ruling on the NPPF, Housing white paper: Measures ‘not sufficient’ to mitigate years of under-investment in planning. And more...
This weeks planning news in association with ThePlanner, the official magazine of the Royal Town Planning Institute.
Supreme Court issues ruling on NPPF paragraph 49
The Supreme Court has delivered its verdict on the application and meaning concerning paragraphs 14 and 49 of the National Planning Policy Framework (NPPF), overturning the Court of Appeal’s interpretation of the phrase “relevant policies for the supply of housing”.
The ruling means appeals by Suffolk Coastal District Council and Cheshire East Borough Council against a Court of Appeal decision in March 2016 were dismissed.
A development in Cheshire and another in Suffolk brought about the case – one was approved, the other refused. Neither council were at the time able to demonstrate a five-year supply of housing land as stated in the NPPF.
On appeal, the Cheshire inspector decided that the council’s countryside and green gap policies were policies for the supply of housing and therefore “out of date” while the Suffolk inspector considered the settlement boundary and countryside policies to not be policies for the supply of housing and therefore found them to be “up to date”.
Both decisions were challenged on the basis the decision-taker had misunderstood the scope of the term “policies for the supply of housing”.
The legal case brought the two together: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.
The Court of Appeal’s judgment broadened the definition of the “relevant policies for the supply of housing” detail in paragraph 49 of the NPPF so that it can be taken to refer to all policies that create or constrain land for housing development, such as green belt designation.
Therefore, where a local authority cannot demonstrate an up-to-date five-year land supply, these relevant polices were too be considered as not up to date.
In July 2016, the two councils were granted permission to challenge the Court of Appeal’s decision in the Supreme Court – the first time it has considered the NPPF.
The Supreme Court found that the Court of Appeal’s interpretation of what “relevant policies for the supply of housing” means was wrong. It said that the “straightforward interpretation is that these words refer to the policies by which acceptable housing sites are to be indentified and the five-years supply target is to be achieved. That is the narrow view”.
“In neither case is there any reason to treat the shortfall in the particular policies as rendering out of date other parts of the plan which serve a different purpose.”
According to the Supreme Court, the important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47.
“If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14.”
Like the Court of Appeal, the Supreme Court said it is paragraph 14, not paragraph 49, that provides the “substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed”.
This means permission should be granted unless adverse impacts would significantly and demonstrable outweigh the benefits when assessed against the NPPF’s policies taken as a whole. This would also apply where specific policies in the NPPF indicate development should be restricted.
The Supreme Court upheld the planning inspector’s decision from 2014 that 146 dwellings could be built on open land on the edge of Willaston, a village near Crewe.
In Suffolk, the council refused permission for a development of 26 houses in Yoxford, which was upheld by an inspector on appeal. The High Court quashed this refusal, which the Court of Appeal upheld. This will now need to be redetermined.
The Supreme Court’s ruling can be found here (pdf).
10 May 2017
Laura Edgar, The Planner
Reaction to Supreme Court ruling on the NPPF
Following the verdict by the Supreme Court on the application and meaning of paragraphs 14 and 49 of the National Planning Policy Framework (NPPF), interested parties have shared their thoughts.
The Supreme Court case was brought following a Court of Appeal decision in 2016.
It found that the Court of Appeal’s interpretation of what “relevant policies for the supply of housing” means was wrong. It said that the “straightforward interpretation is that these words refer to the policies by which acceptable housing sites are to be indentified and the five-years supply target is to be achieved. That is the narrow view”.
The phrase refers to only housing policies of the development plan, rather than those that seek to protect the environment, including the green belt.
The legal case brought the decisions of two planning applications for different councils together: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.
Positive step forward for the industry
Paul Campbell, joint managing director at strategic land company Richborough Estates said the clarification by the Supreme Court is “demonstrable” and is a “positive step forward for the industry at large”.
“The court was clear in its ruling that while restrictive development policies such as those in relation to a green gap remain relevant, if there is no five-year supply of housing available the weight given to them should be judged against the need for development within the area.
“While this determination of the weighting is still a matter for the decision-maker to determine – and some Local Planning Authorities are likely to try to make an interpretation that best suits them – this is a major step in the right direction to removing some of the potential trip hazards within the planning system and ensuring there is an adequate supply of housing.”
Asserts clearly the primacy of the development plan
Jonathan Clay, of Cornerstone Barristers and a representative for Suffolk Coastal District Council, said: “This is a welcome decision not only for the clarity that it brings to a complex and much fought-over area of planning law and policy, but also because it asserts in the clearest terms the primacy of the development plan and the policies of the local plan through which local people can shape and protect their own environment while accommodating the development they need.”
Power in the hands of the decision-maker
Trevor Ivory, planning head at law firm DLA Piper UK, who led the team acting for Hopkins Homes, said the ruling “renders paragraph 49 irrelevant”.
Now, the decision-maker will “need to have regard to the extent to which particular policies of the development plan are the reason for the underperformance when deciding what weight to give to those policies in the application of the titled balance – regardless of whether they are housing supply policies or not”.
He said that even if the decision-maker concludes that a policy is part of the problem, they would still also have a wide discretion as to the weight to attach to the issue.
“Planning by appeal therefore looks set to continue, with developers unhappy about local planning authority refusals looking for a very different weighting from the secretary of state and his planning inspectors."
Right to take matter to Supreme Court
Philip Ridley, head of planning at Suffolk Coastal District Council, said that while the appeal has been dismissed, the Supreme Court has “fully endorsed the key substantive points we were seeking to raise”.
"Although it is disappointing to see the appeal dismissed, the judgment makes it clear that we were right to take the unusual step of taking this matter to the Supreme Court. The judgment has provided clarification on important issues of planning law and policy relevant not only to Suffolk Coastal but also to many councils which, like us, are seeking to ensure that much-needed housing is provided in the right locations.”
He said the Supreme Court agreed with the council that the local plan is a “prime factor” to be taken into account when making planning decisions.
"This is a victory for those of us wanting to follow a proper planning process and communities across east Suffolk will be greatly relieved, as it shows us the strength of the local plans and gives us a defence against inappropriate development in the future.”
Ruling may be sufficient to allow more approvals
The Supreme Court’s decision should mean that more housing is capable of being built on unplanned sites where local councils cannot demonstrate a five-year supply of deliverable housing sites in its area, according to Jay Das, partner in the planning team at law firm Wedlake Bell LLP.
She said the ruling has confirmed that paragraph 49 needs to be read “holistically together” with other policies in the NPPF, such as paragraph 14, which is designed to boost housing supply.
“This is the guiding principle upon which councils should decide what weight to give to policies (which would otherwise limit housing development) in their development plan.”
The question of whether policies are policies for the supply of housing is therefore of marginal relevance. The ruling may in itself be sufficient to allow many more permissions to be granted where councils cannot demonstrate a five-year land supply for housing."
Clear message for planning industry
Katherine Evans, head of planning at law firm TLT, said: “Through unanimously dismissing both councils’ appeals, the Supreme Court has given the planning industry a clear message, although as always the devil is in the detail.”
She said decision-makers now understand where their role in the process lies.
“Helpfully, the court clarified that the NPPF does not displace the primacy of the statutory development plan in respect of non-housing policies when considering planning applications. Given the myriad of political issues surrounding housing policy, however, it remains to be seen how this is applied in future applications.
“The judgment will also be of particular importance to green belt and other environmental policies, as the court ruled that up-to-date policies should still be applied through paragraph 14 – even where authorities fail to demonstrate a five-year land supply and fall foul of paragraph 49.”
Could result in more appeals being lodged
Justin Cove, associate director at planning consultancy Nexus Planning, said the ruling represents a significant shift for decision-makers to contend with.
“While significant weight is already applied to protecting the green belt where there is an absence of a five-year housing land supply, we are now likely to see greater weight applied to other ‘restrictive’ policies.”
For Cove, this is likely to result in a rise in the number of appeals being lodged that involve applications outside the defined urban area.
“At the local authority level, where a wider interpretation of paragraph 49 has generally been relied upon, this will probably cause more applications to be refused than otherwise might have been.
“Given the subjectivity involved in this highly sensitive decision-making process, we can expect to witness a varied range of appeal decisions over the coming months and years as decision-makers tackle each particular circumstance.”
10 May 2017
Laura Edgar, The Planner
Housing white paper: Measures ‘not sufficient’ to mitigate years of under-investment in planning
The RTPI has expressed concern that measures in the housing white paper that will see money from planning fees increases reinvested in local planning authorities may not be enough to mitigate years of under-investment.
In its response to the consultation proposals in the housing white paper, published in February 2017, the institute welcomed the government’s plans to allow local authorities to raise fees for planning applications by 20 per cent to be reinvested in planning departments.
If an up-to-date local plan were in place, this would rise to 40 per cent.
The RTPI has called a number of times for the planning system and local planning departments to be properly resourced.
In November 2016, it launched campaign 16 Ways in 16 Days, outlining its recommendations for tackling the housing crisis. This included allowing local authorities to charge the planning fees they need to properly resource their planning service. “Developers will pay for an efficient and responsive service. Planning departments have suffered greater cuts than other local authority functions – it has to stop and be reversed.”
Now, in its consultation response, the RTPI states that is “concerned that these measures may not be sufficient to mitigate for years of under-investment and resources need to be made available to enable the local planning authorities to cope with the demands” government policies will place on them.
The institute also welcomed the government’s intention to join up development with infrastructure, urging the government to work across departments to achieve this.
However, reliance is placed on policy to achieve this, rather than direction action.
While “there is growing recognition of the role of builders in delivery (or failing to deliver) the lack of cooperation from infrastructure providers (even when money is available) can be equally detrimental”.
“Apart from the matter of assisting connections to the network, this issue has been bypassed by the white paper and yet the solutions lie in ministers’ control over infrastructure regulators.”
The RTPI’s response to the housing white paper also notes:
- The paper “makes no mention” of a mechanism to capture rising private land values to benefit communities.
- There appears to be limited connection between central government housing strategy and industrial strategy.
- The institute would be happy to see proposed changes to the National Planning Policy Framework (NPPF) that would see local planning authorities expected to have clear policies for addressing the housing requirements of groups with particular needs, such as older and disabled people. It is important this is not confined to older and disabled people and that it “incorporates inclusive planning principles”.
- On green belts, the response states that the RTPI position on green belts is that “’green belt boundaries may well need to change, but only through careful reviews over wider areas than single local authorities”. Green belts came into being as strategic tools, and this is how they should continue to be managed.
- The institutes agrees that it would be good for neighbourhood plans to have housing requirements, but not that they should replace wider strategic allocations over the local planning authority area or strategic housing market area. It questions whether policy is the most appropriate place for this (as opposed to guidance), particularly if the neighbourhood forum disagrees with the housing figure.
- The RTPI thinks introducing a fee for appeals is an acceptable measure, but the messaging around this could be very much improved, and a lot rides on the size of the fees. There is a need to increase resources to the Planning Inspectorate. The institute said its members are very concerned at the poor performance on handling appeals, which may well be due to insufficient staff resources. Fees should be introduced, but on exactly the same terms as central government is imposing on local authorities – namely that the grant to PINS is not reduced in consequence.
The RTPI’s response to the housing white paper consultation can be found here (pdf).
8 May 2017
Laura Edgar, The Planner
Changes to Welsh EIA regime highlighted
Welsh chief planner Neil Hemington has written to all heads of planning about changes to the environmental impact assessment regime due to come into force on 16 May.
The new regulations have been laid before the National Assembly.
The process of screening ‘schedule 2’ development has been amended. This includes changes to the information that must be submitted with a screening request and what the local planning authority must consider when making a screening opinion. The 21-day period for making an opinion remains, however, where an extension is agreed, the maximum time before an opinion must be given is 90 days.
The information to be included in an environmental statement has been expanded. There are also new requirements affecting who prepares and considers an environmental statement.
The consultation requirements have also been amended, providing a minimum public consultation period of 30 days, online publicity, and making certain information electronically accessible. New transitional arrangements have been set out so the 2016 regulations will continue to apply in certain circumstances.
The letter and the 2017 regulations can be found on the Welsh Government website.
4 May 2017
Roger Milne, The Planner
Report: Industrial strategy a chance for Northern Powerhouse to step up a gear
The government’s industrial strategy is an opportunity for the Northern Powerhouse to fulfil its potential and its strengths should be harnessed in a post-Brexit world, according to a new report.
Growing the Powerhouse, by planning consultancy Lichfields, considers the strength of the Northern Powerhouse in key sectors such as advanced manufacturing.
According to the report, 29 per cent of Great Britain’s advanced manufacturing jobs are based in the Northern Powerhouse, with all 11 local enterprise partnerships (LEPs) in the north of England outperforming Great Britain’s average.
The report also notes that in knowledge-intensive services – such as professional services, creative, ICT and finance – almost three-quarters of LEPs in the Northern Powerhouse seeing productivity growing faster than the rest of England.
Brendan Edwards, senior economics consultant at Lichfields, said such sectors have been identified for growth by the government and this research demonstrates the potential they offer.
“The emerging industrial strategy places an emphasis on growing high-value, high-skill sectors and UK economic growth and investment strategies should look to fully capitalise on the strengths and potential of the Northern Powerhouse.”
Edwards added that while sector deals will be UK-wide, the Northern Powerhouse has an opportunity to steer their development to make sure they best reflect the needs of its businesses.
Lichfields makes a number of recommendations that focus on planning policy for LEPs, local authorities and the Northern Powerhouse:
- LEPs and local authorities: Safeguard and allocate land to strengthen business clusters and sectors.
- LEPs and local authorities: Review the potential of Article 4 Designations where conversion of business space to residential use could be a risk for specific sectors, such as the creative industries.
- Northern Powerhouse: Ensure strategic-level planning issues are tackled where they affect broad areas, such as guaranteeing deliver of sufficient housing to meet the needs of strategic housing market areas.
- Northern Powerhouse: Share best practice and case studies where inward investment opportunities and growth sectors have been successfully supported by planning policy.
Growing the powerhouse can be found here.
8 May 2017
Laura Edgar, The Planner
News round up
A round-up of planning news
Hotel in St Paul’s approved
The City of London Corporation has granted planning consent for a hotel on Ludgate Hill, close to St Paul’s, a UNESCO World Heritage site.
Real estate and private equity principal company Dominvs will develop and operate the 82,500 square foot hotel under a yet-to-be-announced brand.
Bedrooms will be spread across six floors. The hotel will include a restaurant and spa for hotel guests and local visitors and residents.
The permission also comprises the retention of an existing retail unit on the ground floor.
The scheme has been designed to BREEAM Excellent level. The façade of Creed Court will be retained, and existing buildings on the site will be demolished and replaced with a new part five, part seven-storey building with three basement levels.
RTPI publishes guide on digital economy
The RTPI has published new practical advice aimed at helping planners in cities and city regions to respond to the growth of the digital economy and guide its development.
The digital technology sector is among the strongest drivers of growth in metropolitan areas. Tech jobs are created two times faster than the rest of the economy with the average salary 44 per cent higher than the national average, according to Tech City UK.
Richard Blyth, head of policy and research at the RTPI, said: “Innovative hubs don’t just thrive by chance – they are frequently the result of good planning. City planners are uniquely placed to mediate and bring together the conditions that are attractive to technology firms, such as highly skilled employees who prefer a more social lifestyle and proximity to workplace, broadband connectivity, good transport, and physical compactness.
“But beyond attracting the technology sector, city planners also need to avoid creating ‘tech ghettos’ that exacerbate social inequality, as well as use technology in the planning process itself to innovate and serve the community better.”
The guidance can be found here (pdf).
50% starter homes application submitted in Lancashire
A detailed planning application for 61 homes has been submitted to South Ribble Council for a site in Penwortham.
Housing and regeneration company Galliford Try Partnership, which markets its homes under the Linden Homes banner, plans to redevelop a site off Hill Road South. Plans include building 61 homes on the currently derelict site.
Half of the new homes will be available for open market sale and will include a mix of three and four-bedroom semi and detached homes. The remainder of the homes will be sold through the Starter Homes Initiative. They include a combination of two-bedroom apartments and two-bedroom houses.
The Homes and Communities Agency previously owned the 4.2-acre site. Galliford Try Partnerships acquired the site in April 2017.
79% support renewable energy – poll
Recent government statistics have suggested that 79 per cent of people support renewable energy.
The Public Attitudes Survey, published by the Department for Business, Energy and Industrial Strategy, notes that 73 per cent support onshore wind, 80 per cent support offshore wind, and 79 per cent support tidal energy.
Emma Pinchbeck, executive director at RenewableUK, said: “As political parties get ready to launch their manifestos, it must surely be worth their attention that nearly 80 per cent of the general public support renewable energy, and this remains true across all demographics.
“The public is well aware that home-grown renewables provide clean and affordable energy for the future, along with huge economic benefits to local communities.”
The statistics can be found here.
236 South Kilburn homes approved
Brent Council has agreed to award and enter into a Development and Sale Agreement with Telford Homes Plc for 236 homes in South Kilburn.
The redevelopment of the Gloucester House and Durham Court site, which forms part of the regeneration of South Kilburn, includes the demolition of 209 residential units and garages and the creation of 236 new homes.
One-hundred-and-thirty-four of the new homes will be available for market sale, with 10 of these proposed to be shared equity, and the remaining 102 for affordable social rent through Notting Hill Housing Group. There will also be a basement car park providing 91 spaces, relocation and improvement of the public open space and play area at the north of the site, and space for the South Kilburn District Energy Centre.
Plans suggest that a series of connected private communal and public gardens will create a green sequence of spaces.
Telford Homes said it intends to start on site by September 2017, with completion in 2021.
24 homes approved in the New Forest
PegasusLife has been granted planning approval for its first scheme in the New Forest.
Located in the Rise Conservation Area in Brockenhurst, which is in the New Forest National Park, the development will comprise 24 one and two-bedroom apartments exclusively for those aged 60 and over.
The apartments will be split between three villas and a coach house to transform the site of the disused Watersplash Hotel.
The development will include internal and external shares spaced aimed at helping residents and neighbours to socialise easily.
Court of Appeal challenge against government fracking decision launched
Environmental campaigner Gayzer Frackman has launched a legal challenge in the Court of Appeal against the government’s decision to approve fracking at Preston New Road, near Little Plumpton in Lancashire.
In October 2016, communities secretary Sajid Javid backed an inspector’s decision to grant permission to Cuadrilla for shale gas fracking exploration and monitoring operations at the site.
Environmental law barrister Marc Willers QC of Garden Court Chambers, representing Frackman, said: “We are taking this case to the Court of Appeal on the basis that the government did not fully assess the impact of greenhouse gas emissions likely to be generated from the site over the next three years before it approved fracking on the site, contrary to the Environmental Impact Assessment Regulations. The appeal also questions whether it was safe for the government to grant permission for fracking in the absence of a robust regulatory system that ensures fracking can be carried out without risk to health and with minimal damage to the environment”.
9 May 2017
Laura Edgar, The Planner