Monday, 18 November 2013

Planning by appeal

The natives are getting restless. NIMBYs in the Tory shires, their councillors and now back-bench Tory MPs in Middle England are getting upset about the number of planning appeals for significant housing developments that are being allowed on greenfield sites after they have been rejected by councillors.

This is the inevitable effect of the NPPF in the absence of up-to-date local plans that identify at least 5-yearsworth of housing land in their areas which is genuinely available for development within that time-span. If enough housing land is not allocated in adopted or emerging plans, then planning appeals on suitably located sites that could or should be allocated are very likely to succeed, whether the locals like it or not. Merely asserting that there is a 5-year housing land supply is not enough; appeal inspectors have been persuaded to view the figures critically and have decided in some cases that the council’s estimate cannot be relied upon.

No-one should be surprised by this. I wrote in this blog as long ago as November 2011:

In the absence of regional housing targets or similar centrally imposed policies, planning by appeal is the only means by which the reluctance of local planning authorities to allow sufficient development in their areas can be overcome. This approach might arguably be an unsatisfactory way in which to deliver much-needed development, but the government has left themselves little option, having abandoned a more structured policy-based approach.

Attempted High Court challenges to some of these appeal decisions have mostly failed, and so the ‘score’ of housing developments allowed on appeal is steadily rising. Much the same happened in the 1980s, when a similar requirement was imposed by Circular 9/80. The chorus of dissent gradually grew to a crescendo, until Maggie Thatcher was persuaded to throw the levers into reverse in 1987, and we then got ‘plan-led development’ instead.

I would not like to predict if or when the coalition government might be persuaded to pull back from its present policy on this issue, but the approach of a General Election in May 2015 could prove to be a persuasive factor. The performance of UKIP in local and European elections in May 2014 could have a strong influence on the government’s thinking on this issue (among several others). Videbimus.



  1. The Welsh Government will soon present its "Planning Reform Bill" to the nation, we can only hope and pray that this planning system that came about in 1947 is transformed into something that delivers what the people expect.

  2. Martin Callingham28 February 2014 at 17:32

    It is true that a lack of high-level plans makes for poor results, because LPAs are quite small in extent and the duty to cooperate is toothless. Hence where development land is under pressure (and that is in most areas, especially in the south of England) LPAs have real problems identifying a five-year supply.

    But they are likely to get there in the end. The more serious problem is that no interim arrangements have been made to protect the environment while they do so. As a result of changes made by the last government, the development plan adoption process is much more bureaucratic and complex, and cannot be completed at the drop of a hat. Thus there is a long gap, during which developers can drive a coach and horses through planning controls, scattering big estates of little boxes through AONBs and ultimately doing a lot of damage to the tourist industry.

    Those parishes which have had the enterprise to progress neighbourhood plans may be all right. But elsewhere we can only hope you are right about the election, or our successors in 30 years time may still be bewailing the damage which Mr Boles did to the landscape.

  3. As Martin Callingham and other readers may have noticed, some developers are now aggressively challenging emerging Neighbourhood Plans on the basis that these plans cannot lawfully be adopted in advance of the LDF (or ‘Local Plan’) with which they are required to be in compliance. As we are all painfully aware, the process leading to adoption, first, of a Core Strategy and then of other Local Development Documents (LDDs), a.k.a. Development Plan Documents (DPDs) is unbelievably labyrinthine and bureaucratic. The hope of the developers, presumably, is that if they can choke off such Neighbourhood Plans, they may have a couple more years in which to exploit the loophole potentially offered by the NPPF while there is no up-to-date development plan in place.

    My own guess is that this window of opportunity might be closed sooner than anyone expects. If the Tories do disastrously badly in the European and local elections in May, the panic in the Tory party and among ministers may be so great that they will throw the machinery into reverse and put an end to the current development free-for-all. Remember that the last development bonanza was halted by the Tories themselves in 1987, following the replacement of Nicholas Ridley as Secretary of State. It was while Maggie Thatcher was still in power that we went from “the development plan is one, but only one, of the material considerations to be taken into account” (Circular 14/85 – under Heseltine) to ‘plan-led development’ (reinforced in 1991 by section 54A of the 1990 Act, still under a Tory government).