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 A plan which is based on outdated information, or which has expired without being replaced, is likely to command relatively little weight.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.



  1. Yet another housing scheme granted due to council's failure to provide five-year housing land supply - "Minister allows Cotswold housing schemes"

  2. A local authority client of mine has recently been caught out in two appeals by the lack of a five year housing land supply and is now looking to grant permmissions contrary to the current adopted plan but in accordance with the emerging plan as a way of boosting the supply figure and put them in a position to defend refusals in cases which would not comoply with the emerging plan either.

    Unfortunately, this has been interpreted by some sections of the public (and some councillors) as being "open season" for any site to come forward.

    What they have failed to realise is that by granting permissions now which will be in accordance with the new plan the LPA will be re-gaining a degree of control.

  3. Martin; may I just say that this is a fantastic piece of concise, informative writing. Fantastic stuff.

    I particularly liked your summation of the development management process / the development plan at paragraph 2. Perfect!

  4. Forgive my lack of planning knowledge in relation to this case - I am a layperson as far as the planning system is concerned.
    Could you clarify what is meant by 'sustainable development' in terms of the Localism Act? Our Local Authority is repeatedly supporting an application from a developer to change the use of a public house (the only community facility in the village) on the grounds that its design is sustainable under the NPPF and that it would contribute to the housing needs of the ward (it would not be affordable housing and it is only one house it is also outside the development limits). I was under the impression that the greater consideration was the protection of community facilities?
    In view of the Tewksbury Case, I thought this may be a point of interest as an Local Authority's use of the NPPF in a manner that is almost directly opposite that of Tewksbury.

  5. ‘Sustainable development’ is defined by the NPPF in a box printed between paragraphs 5 and 6, and again in paragraph 14 (also in a highlighted text box), but an important limitation to this definition is set out in footnote 9 – preserving the effect of restrictive policies which effectively negative the presumption in favour of sustainable development. The presumption in favour of sustainable development is explained in more detail in paragraphs 11 to 16.

    Local residents should also consider the provisions in Part 5, Chapter 3 of the Localism Act 2011 (sections 87 to 108) relating to assets of community value – a subject on which my colleague Ben Garbett can advise.