In August last year my blog looked at Annual Position Statements (APS)
, the updated PPG, and summarised how an LPA can ‘confirm’ (i.e. fix) its five-year housing land supply (5YHLS). The ability to fix a 5YHLS was introduced through the revised NPPF (July 2018) and there two routes to doing this:
- Confirming the supply through a local plan examination (plans examined under the 2019 Framework only); and
- Confirming supply post local plan adoption through the APS process (all 'recently adopted'  plans).
A year and a half since the process was first set out, no authorities have an adopted 2019 Framework Plan (Route 1), or an associated Inspector’s Report so we are yet to see how this is playing out in local plan examinations and appeals.
However, we do now have the first authority – Wyre Council - with a fixed supply through the APS process (Route 2). As explained in my previous blog, the APS process has a number of fixed dates and timescales which is about to come around again: the first is 1 April 2020. This blog provides an overview of the first round of the APS process, and considers what this might mean for the next round.
Stage 1: Notifying the Planning Inspectorate (PINS)
According to the PPG (68-012) to submit an APS, an LPA must notify PINS by the 1st April of a given year. By 1 April 2019, nine authorities had notified PINS:
- Boston Borough Council
- Durham County Council
- Fylde Borough Council
- Mid Sussex District Council
- North Devon Council
- North Somerset Council
- Sefton Council
- Torridge District Council
- Wyre Council
Stage 2: Submission of APS to PINS
However, only three authorities went ahead with the APS process and submitted an APS to PINS by 31 July deadline (PPG 68-012). These were:
- Fylde Borough Council
- Mid Sussex District Council
- Wyre Council.
Stage 3: The outcomes
The guidance (68-012) sets out that PINS are expected to issue a recommendation on an LPA’s submitted APS in October of the same year. However, the three Inspectors reports for Fylde, Mid Sussex, and Wyre were only sent to the relevant authorities in January 2020. There is no official reason for the delay, but it may be due to the pre-election purdah. From reviewing each Inspector’s Report (note there were three Inspectors) we have three very different outcomes:
Mid Sussex District Council: Not confirmed
The Council’s attempt to confirm its supply fell at the first fence. Its local plan was not ‘recently adopted’ (NPPF 2019, Footnote 38) so it failed the first stage of the APS examination process (PPG 68-013). This being the case, the Inspector had to conclude the Council’s APS could proceed no further. There was no consideration as to whether the Council undertook satisfactory stakeholder engagement or whether there was sufficient evidence to demonstrate a five-year supply of deliverable sites.
One might ask why Mid Sussex bothered to submit its APS but in fairness, the Council had notified PINS in April 2019 of its intention to submit an APS and the relevant planning guidance on this point was only published on 22 July 2019: just over a week before the 31st July APS submission deadline. It had most probably prepared all of its material by then so perhaps felt it had nothing to lose by chancing its arm.
Wyre Council: Confirmed
Wyre is now the first LPA to have its supply confirmed, surely a point that marks it down in posterity (or perhaps presents a question for inclusion in the planning round of a pub quiz). Its supply is now 5.18 years and will be so until 31 October 2020: this is not a debatable point at the planning application or appeal stage.
While it’s not a debatable point, it came perilously close to the edge: a surplus of just 0.18 year’s supply. The Council’s submitted APS contented it could demonstrate 5.69 years, but the Inspector recommended that 313 dwellings in total be removed from ten sites. The Inspector’s report was quite forensic, looking at each of the 39 sites that were disputed during the engagement process, scrutinising the Council’s evidence. Importantly, in accordance with the PPG (68-013) no other material other than that provided by the Council was considered.
But Wyre is safe. Its 5YHLS is now confirmed and the Council may now choose to re-confirm its supply this year.
Fylde Borough Council: Not Confirmed (To be confirmed?)
The Inspector’s recommendation was clear: the Council cannot confirm its supply as it could not demonstrate a 5YHLS.
The Council is not happy: it intends to judicially review the Inspector’s conclusion
, has updated its APS, and maintains a position that its supply is ‘confirmed’ despite the Inspectors recommendation. The updated APS states:
“This final version of the document has been produced following consideration of a draft APS by the Secretary of State. In accordance with paragraph 74 of the National Planning Policy Framework (2019) (The Framework), this final version incorporates the recommendations of the Secretary of State (see Appendix 5) on the delivery on specific sites, where the position could not be agreed during the engagement process. The Council therefore considers that the 5-year supply of deliverable sites is confirmed by this Annual Position Statement, for the period 1st November 2019 to 31st October 2020, in accordance with paragraph 74.
The Inspector has gone further and made a reassessment of the housing requirement. For the reasons explained below, the Council does not agree with this reassessment, or with certain recommendations in the Inspector’s APS Report”.
The APS Inspector had concluded that in calculating the backlog of supply for the five-year requirement the ‘Sedgefield’ method (preferred method in the PPG 68-031) should be used instead of the ‘Liverpool’ method that had previously been accepted by Fylde’s local plan examining Inspector. This is a marked departure from the conclusions of a Local Plan Inspector and is a point we will explore further. The Inspector also reduced the supply by 120 units by amending the delivery of three sites and deleting an allowance for empty homes. As with Wyre, the Inspector’s report was quite forensic, with a detailed assessment of each aspect of the APS, and material submitted other than by the Council was considered. It was on this basis that the Council could not demonstrate a 5YHLS and its supply was thus not ‘confirmed’.
It will be interesting to learn on what grounds Fylde potentially seeks to challenge the Inspector’s analysis and conclusions to the Courts. If indeed any application for judicial review is approved what the outcome could be. We await to see how this matter is dealt with by the Council and inspectors at S78 appeals when determining planning applications for housing development. Will they engage the ‘tilted balance’ given the APS Inspector’s conclusions? One would anticipate that Fylde will not, and that any refusals of planning permission made on this basis may themselves be challenged by the applicant.
What does this all mean for the next round?
There are some clear headline points for the next round of APSs that will be examined:
- It may sound obvious, but LPAs must be confident in their 5YHLS case when they submit an APS. With the examination of an APS being exclusively about the question of 5YHLS, examining Inspectors have the opportunity to engage solely with that topic, unencumbered by other planning issues. There is no basis (as often happens at s.78 inquiries) for Inspectors to equivocate or conclude that disputed points on 5YHLS do not need to be resolved because they are not material to the planning balance involved determining the planning application/appeal in question. Quite simply, there is no hiding place.
- LPAs must ensure that the 5YHLS case is justified in accordance relevant policy and guidance and be confident their case stands based upon the evidence in the APS submission itself. Inspectors will only conclude using what is contained in the written material provided to them. Unlike at public inquiry or examination, there is no opportunity for planning witnesses or barristers to explain or elaborate upon their position on each disputed point.
- Even with the enlarged 10% buffer for an APS, Council’s intending to confirm will want some resilience in their case: Wyre came very close to not being able to demonstrate a 5YHLS and had its housing supply reduced by over 300 units. Fylde also had 120 units removed from its supply and the major intervention of now having to apply the ‘Sedgefield’ method to calculate its backlog.
- The chance of failure – based on the focused and forensic nature of the review - as well as the extended timescale this time round, may lead some authorities to conclude it is not worth the risk of having its supply not confirmed. The outcomes of the APS process are very black and white. Arguably, there is some safety by being in the grey area between “confirmed” and not “confirmed” if an authority’s position is marginal.
- In addition, if an LPA doesn’t have a recently adopted plan it will simply be rejected. This applies to authorities that fail to have their APS confirmed, because by the next APS submission date its local plan will no longer be recently adopted.
Finally, for developers/promoters, engagement in the initial APS with the LPA is key. The Inspectors did not consider any evidence that wasn’t submitted with the APS by the LPAs. If you miss the boat on the LPA’s APS engagement process, it is too late to have your views heard.
A further Lichfields blog will follow with some more in-depth thoughts on the Wyre and Fylde APS Inspectors’ conclusions on what constitutes satisfactory engagement, the definition of the five-year requirement, and what constitutes a deliverable site.
 A plan adopted between 1 May and 31 October will be considered ‘recently adopted’ until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October in the same year (Footnote 38, NPPF 2019).