Planning matters

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The First Metro Mayor for the West of England
Conservative Tim Bowles, has now been sworn in as the first Metro Mayor for the West of England Combined Authority (encompassing Bristol, Bath & North East Somerset and South Gloucestershire) and is tasked with leading the delivery of a Devolution Deal worth £900m. Addressing the housing shortage was one of the Metro Mayor’s key priorities during the election campaign. With barely two weeks having passed since he took office, and with purdah prior to the General Election, it could be some time before we have clarity on how this is likely to be achieved. This blog considers some of the key challenges that lie ahead in planning for more homes across the region. It is generally agreed that we need more houses across the region to address a worsening supply and affordability crisis. The emerging Joint Spatial Plan (JSP), which also includes North Somerset, goes some way to tackle the issue by providing the framework to deliver up to 105,000 new homes over the next 20 years. The consultation report on the JSP shows that the development industry considers this level of growth to be insufficient – particularly to address the desperate shortfall of affordable housing. Against this backdrop, it is encouraging that the Metro Mayor has pledged to develop a strategy to deliver more new homes. The biggest question of course is ‘where will these new homes will be built?’ The Metro Mayor has stated that he will work to ease the pressure for greenfield development and development within Green Belt and take a ‘brownfield first’ approach. However, for a region where Green Belt accounts for nearly 50% of the land and tightly constrains existing urban areas, it will not be possible to say ‘no’ to Green Belt release if the supply of new housing is to be significantly increased - particularly when capacity on brownfield sites is limited; viability more challenging; and the lead-in times for delivery longer.  To tackle the housing crisis the Metro Mayor should be ambitious in adopting a pro-growth and permissive approach which supports the delivery of open market and affordable housing in a range of suitable locations and across a portfolio of sites including brownfield and greenfield. This will involve difficult decisions because any robust plan for housing growth must include a full and proper assessment of the Green Belt. If not, there is a real risk that housing needs across the region will not be met. After May 2018, the Metro Mayor will have powers of strategic planning, including the ability to adopt a statutory spatial development strategy for the Combined Authority Area, which could act as the framework for managing planning across the region. To provide certainty for the development industry, there is need for clarity about how a spatial development strategy will sit with the emerging JSP. A principal issue will be to ensure that there is no delay in the delivery of strategic housing sites that are currently being planned for through the JSP. One of the key challenges in managing sustainable housing growth across the region will be the delivery of significant infrastructure improvements to address years of under-investment. The Metro Mayor recognises that an efficient and integrated transport system will help to unlock further growth across the region and has promised to work with a range of stakeholders to improve infrastructure through projects such as the revival of suburban rail links, enhanced park and ride provision, better cycle routes and bus improvement measures. The Joint Transport Plan outlines a raft of ambitious transport improvements including new rapid bus and light rail links, improvements to the road networks and the extension of the MetroWest project. The cost of delivering these projects runs in to billions of pounds - far beyond what is available through the Devolution Deal. But what we do now have is an immediate source of funding and a Metro Mayor with strategic transport planning powers to invest in some of the transport priorities that have been identified. What the Metro Mayor needs to deliver is a clear, long-term strategy for a better functioning and integrated transport system which not only improves residents’ access to jobs and opportunities but also demonstrates how development sites for new homes can be opened up. Strategic planning for transport alongside housing growth will lead to more sustainable patterns of development and ease congestion. The Metro Mayor will be one of four decision makers - chairing a Cabinet made up of the leaders of the three Councils (two Conservative and one Labour) including Bristol’s elected Mayor. This is positive because it will ensure that the benefits from the Devolution Deal will be shared across the region. But political diversity will mean that the Metro Mayor can only address strategic growth by cutting through party politics.  Another political consideration will be how best to work with North Somerset, which last year voted against the creation of a Metro Mayor and is not directly included in the new administration. North Somerset forms a part of the functional Wider Bristol Housing Market Area (not least because 22% of its residents in work commute in to Bristol) and will have a key role to play in solving the regions’ housing crisis including Bristol’s unmet need. Taking an inclusive approach to engagement and involvement in decisions that impact upon and help North Somerset will, therefore, be crucial.   Despite these issues, what remains beyond doubt is that the Devolution Deal provides a great opportunity for the West of England to maintain its strengths and unlock the full potential for well planned sustainable housing growth. Image credit: Paul Raftery

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Judgement has been handed down in Secretary of State for Communities and Local Government (SoS) v (1) West Berkshire District Council (2) Reading Borough Council.  The Master of the Rolls Lord Dyson, and Lord Justices Laws and Treacy allowed the SoS’ appeal and all four grounds succeeded.  The local authorities could appeal to the Supreme Court, but for the foreseeable future, there is flexibility over how local planning authorities (LPAs) might apply government policy regarding small site affordable housing contributions and the vacant building credit (VBC). Both have made a comeback, with national Planning Practice Guidance (PPG) having just been updated to refer to the ruling. Background The SoS had appealed against West Berkshire DC (WBDC) and Reading BC’s (RBC) successful challenge (in 2015) of national policy introduced in 2014 for a ‘vacant building credit’ and which outlined the circumstances in which contributions for affordable housing and tariff-style planning obligations should not be sought from small scale and self-build development.  The Planning Court judgement led to the removal of guidance from the PPG (see para 24 of the 2015 judgement, and revisions to the PPG, for the wording of the deleted paragraphs). The policy changes had been introduced in November 2014 by Ministerial Statement, and added into the PPG in 2015.  Following the 2015 judgement, ‘policies’ related to small sites not having to make affordable housing contributions and VBC were removed from the PPG; only paragraph 31 of the ‘Planning Obligations’ PPG regarding starter homes exceptions in rural situations continued to refer to the Ministerial Statement. The judges’ conclusions Points 1-4 below summarise the judges’ conclusions on each ground of appeal: Inconsistency with the statutory scheme. The judgement makes clear that a policy does not need to express its openness to exceptions (e.g. where a development plan might be inconsistent with it), and to not do so does not demonstrate that a policy was intended to frustrate the effective operation of the statute (in this case being s38(6) of the Planning and Compulsory purchase Act 2004 and s70(2) of the Town and Country Planning Act 1990).  A decision-maker should ‘bring his mind to bear on every case, he cannot blindly follow a pre-existing policy’ without considering exceptions.  Furthermore, the Court agreed with the SoS’ Counsel that the SoS may express his view as to the weight to be given to his policy, ‘…But he cannot, so to speak, lay down the law about it’.  However, it is not in law that greater weight is to be attached to the development plan than other considerations. Failure to take into account material considerations when policy making. Whilst the statutory planning context prohibits the SoS from making policy that would frustrate the effective operation of s38(6) or s70 (2), and introducing policy matters that are not planning considerations, ‘… his policy choices are for him’.  The planning legislation does not lay down merits’ criteria for planning policy, nor establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.  The SoS did not need to take into account the matters Holgate J considered to be ‘obviously material’ considerations in the 2015 judgement. Inadequate consultation. The judges considered whether the consultation process was so unfair as to be unlawful, and concluded that it was not unfair and the Minister was entitled to consider the range of responses (and relevant information), and form his own conclusion. Breach of the public sector equality duty. The judges acknowledged that the February 2015 Equality Statement takes a ‘relatively broad brush approach’ but concluded that compliance with the terms of s149 of the Equality Act 2010 was achieved. Has national policy/ guidance been restored? If so, how should it be interpreted? Before amending the PPG on 19 May, the government issued a press release indicating that, following the judgement, the policy relating to vacant building credit and small sites not having to make affordable housing contributions in planning obligations had been 'restored'. The PPG’s 19 May updates now provide guidance on self-build and small sites not making affordable housing and tariff-style contributions via s106 obligations, whilst acknowledging that some planning obligations may be necessary to make development acceptable in planning terms.In our view, restoring the PPG was not essential, because the Ministerial Statement still existed and still applied.  While the ‘policy’ in the PPG was being challenged, the weight to be given to the Ministerial Statement as a material consideration was limited - but it remained a matter for the decision-taker to decide how much weight to attach to it.In addition, prior to this judgement, the general interpretation was that the PPG required LPAs not to seek affordable housing contributions for small sites and to apply VBC in certain defined circumstances - which is why the local authorities (LAs) involved challenged the PPG paragraphs and the Ministerial Statement.  Our view is that the judgement indicates that the statement of policy and the PPG paragraphs did not and cannot have this effect because government policy and guidance are no more than ‘other material considerations’ in planning law. This was a key reason for the SoS’ appeal succeeding.  Accordingly, LPAs may continue to seek affordable housing contributions where development sites are for less than ten units, if their development plan has an up-to-date evidence base in support of this approach. Does a ‘blanket approach’ to interpretation of the Ministerial Statement/ the reinstated PPG paragraphs apply? Our view is that the judgement explains that a ‘blanket approach’ to these policies/ PPG paragraphs (or any government planning policy or guidance) is not correct, and that the weight to attach to the PPG’s approach to small sites not having to make s106 affordable housing contributions, and to VBC, would be for the decision-taker to decide.  In this respect, where LPAs’ development plan policies are supported by up-to-date evidence, they will be able to continue to seek affordable housing in relation to small sites.  And as regards VBC, an LPA might demonstrate, for example, that the credit should not be applied because the LPA’s housing requirement is heavily reliant on the re-use of brownfield sites for the delivery of affordable housing. Have Reading BC or West Berkshire DC publically indicated whether or not they intend to appeal? The Councils have issued a joint statement saying that they are ‘considering their options’ in light of the decision, and defending their decision to appeal on the basis of the number of affordable homes secured between the two judgements (they have 28 days from the date of the judgement to decide).  We consider an appeal unlikely. And in any event, NLP’s view is that the decision can be seen in effect as a success for the LPAs concerned, and others, because it makes it clear that there is no ‘blanket approach’ to the application of government policy to decision-taking (see above), or plan-making.  

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