Wednesday, 20 February 2013

Development management under the Localism Act

Today’s judgment in Tewkesbury BC v. SSCLG [2013] EWHC 286 (Admin) is a sharp reminder to LPAs that they have not been let off the hook by the changes brought about by the Localism Act and the NPPF. Ministers pretended that these changes would give much greater local control over planning proposals, but those of us familiar with the planning system who took the trouble to read and understand the legislation and the revised ministerial policy documents realised that nothing much had changed, and so the judgment in Tewkesbury comes as no surprise, although it may have been a bitter disappointment to Tewkesbury Borough Council’s elected members.

The key to the development management process remains section 38(6) of the 2004 Act. The starting point for consideration of any application must be the development plan. There is a presumption that any decision to grant or refuse permission should be in accordance with the plan, but that presumption can be rebutted if material considerations indicate otherwise. The weight to be given to a development plan will depend on the extent to which it is up-to-date. A plan which is based on outdated information, or which has expired without being replaced, is likely to command relatively little weight.

Since March 2012 the material considerations that need to be taken into account have included the National Planning Policy Framework, which replaced many of the previous policy statements. Paragraphs 47 and 49 of the NPPF provide:

"47. To boost significantly the supply of housing, local planning authorities should:

- use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

- identify and update annually, a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …"

"49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

So the need to ensure a five-year supply of housing land is of significant importance. After the NPPF, if such a supply cannot be demonstrated, relevant policies are to be regarded as out of date, and therefore of little weight, and there is a presumption in favour of the grant of planning permission (which may be rebuttable, but nevertheless carries considerable weight). All of this should now be well understood by local planning authorities. An authority which is not in a position to demonstrate a five-year supply of housing land should be well aware that there is a real risk that appeals against the refusal of planning permission will be granted, and the award of costs against the council could follow.

As the judge made clear, however, this is not to say that the absence of a five-year housing land supply will always be conclusive in favour of the grant of planning permission; the absence of such a supply is merely one consideration required to be taken into account, albeit an important one.

In the Tewkesbury case, the inspector reached four important conclusions. The first was that if the developers' appeals were rejected, it would be impossible for Tewkesbury to meet the identified need for housing within the next five years. The second was that even if the appeals were allowed and the developments took place, there would still be a shortfall against projected need. The third was that, because allowing the appeals would still leave a shortfall, this could not prejudice the other choices to be made in the development plan process. As the inspector put it, other than allowing the appeals there was no other credible way of providing a 5-year housing land supply. The fourth conclusion was that it was Tewkesbury's own delay, with the consultation draft development plan option only having been issued in December 2011, after the expiry of the existing pre-2004 Act plan, which had created the current policy vacuum.

The effect of these conclusions was that even if full weight was given to the emerging core strategy, in the inspector's view the core strategy proposals were not capable of meeting the identified housing need, and therefore could not rebut the presumption in favour of development as a result of the absence of a five-year housing land supply. At the invitation of the council, the inspector went on to consider the effect of the Localism Act 2011 on the approach to be adopted, but concluded that there was nothing in the Act to alter the long established requirement for a five-year housing land supply, both before and after publication of the NPPF.

The LPA also attempted to argue that the release of the appeal sites in advance of the emerging Core Strategy was premature. However, this argument was readily dismissed in view of the very early stage the council had reached with its draft core strategy, coupled with the fact that releasing these sites would make very little difference to the outcome of the local plan-making process.

It was also contended by the LPA that it was wrong to assess the five-year housing need by reference to the figures in the draft Regional Strategy, when that strategy is to all intents and purposes a dead letter. However, the assessment of housing need was a matter for the inspector to determine based on the evidence before him. Secondly, the fact that the Regional Strategy will not be implemented does not necessarily invalidate what it has to say about the projected need for housing land [my emphasis]. Thirdly, this was the material that the parties put before the inspector, there being (on Tewkesbury's own case before the inspector) nothing better. Fourth, it appears that Tewkesbury accepted at the inquiry that it was unable to demonstrate a five-year housing supply, so that paragraph 71 of PPS3 [now replaced by paragraphs 47 and 49 of the NPPF] applied. And fifth, the inspector concluded that it was very unlikely that Tewkesbury could deliver a five-year housing land supply whichever figures were used.

The Localism Act unmasked

One of the major planks in Tewkesbury’s case was that the Localism Act 2011 has fundamentally changed the approach to planning and has given, or was intended to give, LPAs a much greater say in deciding what development should be allowed to occur in their areas. An obvious weakness in this argument was Tewkesbury’s inability to point to any specific provision in the Act itself which supports this contention. They were driven back instead on an attempt to place reliance on various ministerial statements and glosses on the Act, such as the ‘Plain Language Guide’ to the Act. Unsurprisingly, this got short shrift from the court. The judge did not accept that the effect of the changes in the Act was to eliminate the role of the Secretary of State in determining planning applications opposed by local planning authorities or to abolish long-standing principles and policies such as the need for a five-year housing land supply as the means of resolving the tension between individual planning applications and the more extended timescale needed for the formulation and adoption of local development plans. Nor in his judgment did various statements of policy (both formal and informal) suggest otherwise.

Regional strategies were to be abolished under the provisions of the Localism Act, but there was nothing in the Act to suggest that relevant national policies would no longer apply, or that the Secretary of State would no longer perform his function in determining planning appeals, applying the same principles and policies as before. In particular, the policies relating to a five-year housing land supply were expressly reaffirmed in the NPPF. It cannot sensibly be suggested, therefore, that those policies were intended to be swept away.

Tewkesbury complained to the court that if this was so, then the fanfare which accompanied the Act would not have been justified, as the actual transfer of power to local authorities would be illusory. His lordship observed drily that whether or not that is so was not for him to say, although if it were, he did not suppose that it would be the first time that more has been claimed for a legislative reform than has actually been delivered (!) In any event, this is not a consideration which can affect the true meaning of the Act. It remains necessary to identify with some precision the legislation and the policy statements relied upon in order to consider their true meaning. It is not sufficient to refer in general terms to essentially political statements as to the intended or supposed nature of legislative or policy changes.

So, in case anyone was still in any doubt about it, the Localism Act (as I have said before) changed nothing, so far as the fundamentals of the development management system are concerned. All it did was to provide the machinery for removing the regional strategies, thus leaving a major gap in strategic planning, which the duty of neighbouring LPAs to co-operate goes nowhere near filling. But the housing need is still there, and all LPAs must carry out a Strategic Housing Market Assessment, which is likely to throw up much the same sort of figures at the local level as the old regional strategies. Local councillors will soon learn, if they have not appreciated the truth already, that there is no escape from the need to provide significant extra housing in their areas.


Tuesday, 19 February 2013

Green field homes election row at Eastleigh

The decision of the Lib Dem-controlled Eastleigh Borough Council to grant planning permission for a 1,400-home development on a green field site in the borough has become an issue in the Eastleigh by-election. But the row only serves to make the opposing candidates look silly, and will do nothing to persuade the electors to come out and vote for politicians who seem unable to rise above petty political point scoring.

What is puzzling about this row is that it is the local Tories (including a neighbouring Tory MP) who are making a fuss about the planning decision, yet in reality the Council (irrespective of which party is in control) had no choice but to approve this application, because of nationally-imposed policies put in place by Tory Communities Secretary Eric Pickles, and enthusiastically supported by the Tory Planning Minister, Nick Boles.

The plain fact is that under the National Planning Policy Framework (published by the coalition government in March of last year), local planning authorities are required to identify in their Core Strategies more than a 5-year supply of housing land in their areas, failing which they must either release more land for development or face losing appeals against their refusal of permission for such developments.

Eastleigh Borough Council does not have a 5-year housing land supply. So it cannot comply with the NPPF. Furthermore, it is clear both from the NPPF and from previous appeal decisions around the country that the council would not be allowed to ‘wait and see’ while its emerging Local Development Framework approaches eventual adoption. The council’s officers recognised this and frankly advised in their committee report that a refusal of planning permission could not be justified. They therefore recommended that the application should be approved, and the elected members very sensibly accepted that recommendation.

In the circumstances, and as an entirely neutral observer, I find it bizarre that local Tories have seized on this planning decision as a stick with which to hit out at their Lib-Dem by-election opponent.

I am politically agnostic, and I don’t give a damn who wins the Eastleigh by-election, but politicians cannot expect to be taken seriously by the electorate if they try to make political capital out of a perfectly neutral and objectively-reached planning decision, which was in effect forced on the local council by the current coalition government through its nationally-imposed policies. It does not seem to me that there is any advantage to be gained by either the Tory or the Lib-Dem candidate in feuding over this decision. It only serves to make them look petty and small-minded, and confirms the suspicions of all too many of us that none of them deserves our votes.

[UPDATE: If anyone has any doubts about the wisdom of Eastleigh BC's decision to grant planning permission in this case, they have only to read the Tewkesbury judgment (see the next item on this blog) to appreciate that Eastleigh had no practical choice in the matter.]

[FURTHER UPDATE (3.9.14): Leave has now been granted for an application to be made to the High Court to quash this decision. The challenge seems to centre on whether councillors were materially misled as to relevant factors to be taken into account and whether this involved a failure to take into account relevant material considerations in addition to those that clearly influenced the decison to grant planning permission. One of these issues would appear to be whether alternative sites ought to have been considered. We shall await the outcome of this case with interest.]


Tuesday, 12 February 2013

The housing conundrum

Andy Ward submitted a comment in response to my post on "Permitted development - office to residential". It goes well beyond the subject-matter of my original post, but nevertheless deserves an airing, and so I have decided to give it a post of its own.

Andy Ward writes: We know this idea of a change of use as Permitted Development from B1(a) to C3 has been kicking around since just after the election, but this still smacks of something thought about over a couple of pints and a bag of crisps last weekend; but something as important as supplying enough homes of the types people want and need requires more than this.

It's yet another sticking plaster solution to the chronic undersupply of housing in this country. New Homes Bonus has been a joke for a start - I'd love to see a statistic for how much of the money handed out under that scheme relates to dwellings approved before the New Homes Bonus came into effect or, for that matter, some statistics to see how New Homes Bonus relates (or doesn't) to any change in the housing supply figures in individual LPA areas. (Lots of LPAs I deal with - if not most - steadfastly refuse to take account of New Homes Bonus in their decision making!)

Slightly changing the subject, one league table I'd like to see is one for housing supply, since the majority of LPAs I come across don't have 5 years, and so many still seem to have trouble getting the calculation right. There are also plenty who still see a 5.1 year supply as an oversupply that must be corrected.

Let's also not forget the proportion of current supply being delivered as affordable housing - a successful overall housing supply would see the need for and supply of affordable housing diminishing, not growing.

Then there's the steadily increasing proportion of rented properties in the market. Yes, we need more rented properties per se, to increase choice and flexibility, but it remains the case that most people want to own their own home. (I don't hold much truck with those who say home ownership is a luxury and should not be pandered to, that rent is the way forward - let all those who think that be the first to give up their homes and rent for the rest of their lives.)

Sadly, I see no change for the next 5-10 years because the problem of anti-development sentiment is endemic and the politicians either refuse to recognise it or are afraid to deal with it. Hence, an undersupply of hundreds of thousands of houses is being tackled by trying to add a few thousand flats as a result of office conversions in the next 3 years.


[I see exactly what Andy means. However, so far as housing supply is concerned, the full force of the NPPF will be felt by LPAs from the end of next month, and those unable to demonstrate a 5-year (+) supply of housing land are going to lose appeals on unallocated sites. In fact, where an LPA has a record of under-delivery, they will be required to have not simply a 5% margin but a 20% margin (in effect a 6-year supply). Some inspectors are applying a robust approach to this issue when judging the soundness of Core Strategies, and LPAs who find themselves in this position may not be able to prevent the housing development they have been seeking to resist. - MHG]

Monday, 11 February 2013

Permitted development - office to residential

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

The government’s intention to allow change of use from office use (within Use Class B1) to residential (Class C3) has caused a certain amount of concern and controversy, although property professionals are suggesting that the take-up of these new permitted development rights may not be so great as the government may be hoping, or as planning authorities and their officers seem to fear.

This is just one of a number of proposed changes to the GPDO that also include allowing agricultural buildings to be used for other purposes (but not for residential use) and increasing the amount of floorspace that can be changed between business use (B1) and storage use (B8) and from general industrial use (B2) to B1 or B8.

However, unless I have missed something, it seems that the statutory instrument to give effect to these changes has not yet been made and laid before parliament, nor does a draft statutory instrument seem to have been published. The intention is that the new provisions should come into effect this Spring (a usefully elastic season!), but the government seems to have jumped the gun by telling LPAs that if they want to claim exemption from the amendment order, they must apply to De-CLoG by no later than 22 February. This could well prove to be unlawful, and I suggest that some LPAs might wish to consider the possibility of challenging the legality of this apparently extra-statutory procedure!

In the absence (as yet) of a draft statutory instrument, we have only the statements of ministers and De-CLoG press releases to go on, plus the recent letter from De-CLoG’s Chief Planner, Steve Quartermain to local authorities as a guide to the contents of what will no doubt become the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2013. The core provision, presumably as an extension to Part 3 of the Second Schedule to the GPDO, will be the right to change the use of an office (Class B1(a)) to use as one or more dwellings. Exactly how many dwellings could be created in any particular office building is a point that may or may not become clear when we see the actual legislation. What is clear, though, is that any external alterations to the building will not be permitted development.

The new rights will initially be available only for a period of three years. The government will consider towards the end of that period whether they should be extended indefinitely. This new PD right will be subject to “a tightly drawn” prior approval procedure, which will cover significant transport and highway impacts, and development in areas of high flood risk, land contamination and safety hazard zones.

As mentioned above, local authorities are to be given an opportunity to seek an exemption for specific parts of their locality. However, exemptions will only be granted in exceptional circumstances, where local authorities demonstrate clearly that the introduction of these new permitted development rights in a particular area will lead either to the loss of a nationally significant area of economic activity or to substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring.

If they consider that a specific part of their area should be exempted from this change, and that it meets either of these two criteria, LPAs have been invited to request an exemption from the new PD rights within the next fortnight (!) The fact that this will be a high hurdle to surmount is emphasised by the Chief Planner’s insistence that this measure is seen as an important contribution to assisting the economic well-being of the country and this is reflected in the high thresholds they are setting, which (it is claimed) recognise that any loss of commercial premises will be accompanied by benefits in terms of new housing units, additional construction output and jobs. These benefits (they say) are potentially very substantial and are likely to be felt at the local authority level and wider.

This does seem to be a very strange way to go about introducing an important change in planning legislation, and De-CLoG could yet prove to have tripped themselves up by the rather odd procedure they appear to have adopted in promulgating these changes.

[UPDATE (April 2015): The SI amending the GPDO came into effect on 30 May 2013, and has now been replaced by the new GPDO, with effect from 15 April 2015. The new rules on permitted development that this amended order introduced are now the subject of the book mentioned at the head of this post.]


Saturday, 9 February 2013

Agricultural buildings - the “reasonably necessary” test under Part 6

Everyone is familiar with the prior notification procedure under Part 6 (Class A) of the Second Schedule to the General Permitted Development Order (erection of a building and other operational development on an agricultural unit of 5 ha or more), but it should not be forgotten that, in order to qualify as permitted development under this part of the GPDO, the building in question must also be “reasonably necessary for the purposes of agriculture within that unit”.

The question as to whether or not a particular building is reasonably necessary for the purposes of agriculture is not one for determination by the LPA; it is purely a matter of fact and degree – either the test is met or it is not. It is an entirely objective test. However, existing government guidance (in the still extant Annex E to the old PPG7) does encourage LPAs to state their opinion if they believe that the building in respect of which they have received prior notification is not reasonably necessary for the purposes of agriculture. The important point to be borne in mind is that any such opinion has no binding effect. The mere statement of such an opinion cannot in itself disqualify development from being permitted development within Part 6 (Class A). On the other hand, there will clearly be an onus on the developer, if their right to erect the building as permitted development is challenged, to prove on the balance of probability that the objective test of reasonable necessity is in fact met.

An LPA may easily fall into a trap if it forms the opinion that the building is not reasonably necessary for the purposes of agriculture and then (as a result of that) fails to respond to the application it has received within the mandatory 28-day period. If the LPA is objectively correct in its view that the building does not meet the qualifying criterion, then it is not under an obligation to respond to the prior notification application within 28 days or at all. However, if it turns out that the LPA was wrong about the test of reasonable necessity, then a failure to respond to the notice within the 28-day time limit will allow the developer to proceed with the erection of the building without any further input from the LPA, and in particular without obtaining the LPA’s approval of its siting or design.

One point which is abundantly clear is that a building will not qualify under Part 6 (Class A) if the agricultural activity has not yet started or is being conducted purely or mainly as a hobby. Paragraph D.1 in Part 6 of the GPDO clearly states that, for the purposes of Part 6, “agricultural land” means land which, before development permitted by this part is carried out, is land in use for agriculture for the purpose of a trade or business (i.e. there must be an existing agricultural use and this must be a business, not a hobby). So a building cannot be erected as permitted development under Part 6 where the agricultural enterprise has not yet started, and it cannot be erected if the agricultural activity amounts to no more than ‘hobby farming’.

Thus the ‘chicken and the egg’ question can be easily answered in relation to this particular issue – the ‘chicken’ (the agricultural enterprise, conducted on a commercial basis) must come first. Only then can the ‘egg’ (a new agricultural building or buildings) follow, and only if the ‘reasonably necessary’ test is met, as well as the other criteria laid down in Class A of Part 6.

The need to meet the objective test of reasonable need for the building does not necessarily imply a requirement to prove that the agricultural unit is commercially viable. However, the issue of the viability of the agricultural unit cannot be entirely ignored, because if there is no viable agricultural business being carried on, then there may be some doubt as to whether the site falls within the definition of “agricultural land” at all, as explained above, and it might reasonably be argued that it shows that the building in question is not reasonably necessary for the purposes of agriculture. This is not to say that it is essential to be able to demonstrate the commercial viability of the agricultural enterprise, but if the agricultural enterprise is not (currently) viable, it may in those circumstances be difficult to show on an objective basis that the building is reasonably necessary for the purposes of agriculture within that unit.

Unfortunately, it is impossible to lay down any hard and fast rule in relation to these points. All I can say is that the developer does need (if challenged) to be able to demonstrate on the balance of probability that the objective test as to the building’s being reasonably necessary for the purposes of agriculture within that unit was met at the time when it was erected. The commercial viability of the agricultural unit may well be a factor in relation to this question, although viability might not be the determinative factor in the circumstances of a particular case. I suggest, for instance, that whereas the test formerly proposed by the now withdrawn Annex A to PPS7 (in relation to demonstrating a need for a new agricultural dwelling) insisted on existing viability being proved by at least three years’ accounts, the ‘reasonably necessary’ test for other agricultural buildings does not appear to require such a stringent criterion to be applied. Future or potential viability might suffice to satisfy the test, so long as it can be shown that there is a reasonable basis for anticipating this, sufficient at least to demonstrate on the balance of probability that the proposed agricultural building can properly be said to be reasonably necessary for the purposes of agriculture within that unit.


Tuesday, 5 February 2013

The Red Tape Challenge tackles planning

Not only are there firm proposals for amendment of primary and subordinate legislation to simplify the planning application process (as described in recent posts in this blog), but the government has also announced that it is to take a further look at what Nick Boles has called “unnecessary technical regulations that are no longer needed”.

My colleague David Brock has blogged on this within the past few days, and rather than repeating what he wrote, I would refer readers to David’s blog, which can be accessed by clicking on the link of the left-hand side of this page.

My only reservation about this latest announcement is that it appears to reveal something of a scatter-gun approach on the part of ministers to the business of de-regulation. Getting rid of red tape is very welcome, but the way it is being done suggests a somewhat disorganised and uncoordinated approach to the issue. Nevertheless, so long as the various changes result in the removal of obstacles to the submission, validation and timely determination of planning applications, then this is all to the good.