Planning matters

On 26^th March 2020, the Minister for Housing and Local Government, Julie James, announced that Technical Advice Note 1 (TAN1: Joint Housing Land Availability Studies) had been revoked and that the Five-Year Housing Land Supply section of Planning Policy Wales had been replaced by an interim policy statement. She also announced that Edition 3 of the Development Plan Manual had been published.

To summarise, the Five-Year Land Supply policy in Wales has been removed and replaced by a new method of monitoring housing delivery based on trajectories set out in Local Development Plans (LDPs). The requirement for decision makers to afford ‘substantial weight’ to the lack of housing delivery has been removed. This signifies a clear message from Welsh Government that a Plan-led approach to the delivery of homes is paramount with ‘speculative’ applications for residential development on unallocated sites outside of the settlement boundary not being looked at favourably. At face value, the new approach will make it harder for such sites to be promoted.

There have, however, been some interesting appeal decisions that illustrate the Planning Inspectorate’s approach to matters of housing delivery following the change in policy. In summary, these decisions show that housing delivery remains an important consideration in determining planning appeals (and applications), especially in situations where the Local Plan or the Replacement Local Plan remains some distance from adoption. Figure 1 demonstrates the current progress of Local Development Plans in Wales.

The unallocated appeal site lies outside the settlement boundary. In allowing the appeal on 27 April 2020 the head of the Planning Inspectorate in Wales, Tony Thickett, stated (paragraph 8):

“The changes to PPW and revocation of TAN1 have not reduced the importance of delivering new housing, just the way delivery is planned, measured and monitored. PPW, as revised, states that: ‘Under-delivery against the trajectory may require a specific early review of the development plan’. In my view that is a clear indication that the government is committed to ensuring that the planning system delivers the housing Wales needs and that under delivery is a material consideration.” (Lichfields emphasis).

Mr Thickett helpfully clarified that, despite the recent policy changes, the under-delivery of housing remains a material consideration. He then sets out matters to be considered in determining the weight to be attributed to under delivery, as follows:

1. The extent of the shortfall;
2. The length of time there has been a shortfall; and,
3. How soon the Council will be able to demonstrate through an adopted LDP, how the housing needs of the area are to be met.

He concluded that, in this case, the shortfall was significant both in terms of quantum and the amount of time that the housing land supply had been inadequate. The fact that the Unitary Development Plan (UDP) is time expired and that Flintshire’s first LDP[1] is still some 12-18 months away from adoption means that a Plan-led solution to the housing shortfall will not be forthcoming in the near future. Against this context, the Inspector accepted that the site is needed to provide a short-term solution to the housing supply issues.

Similar to the Penyffordd appeal, this site also lies outside the settlement boundary and is set in the context of an LDP that is nearly time expired with very limited progress made on a LDP review[2].

In allowing the appeal on 12 June 2020, Inspector Joanne Burston explained at paragraph 44 that:

Again, the Inspector notes the recent changes to national policy and guidance and states at paragraph 33 that:

Interestingly, the Inspector actually made use of the five-year supply method to quantify the shortfall. This is likely to be a reflection of the fact that appeal was made prior to the revocation of the five-year land requirement policy and evidence was presented in respect of this matter. The Inspector used this evidence to highlight the severity of the housing land supply problem in Rhondda Cynon Taf County Borough and the need for intervention. We would not, however, expect to see detailed discussions about the five-year housing land supply position in planning appeal decisions going forward.

In explaining the need for the site, the Inspector went on to highlight revised paragraph 4.2.12 of PPW which states:

The Inspector clearly felt that allowing this appeal represented a suitable intervention that would assist in the delivery of housing supply in Rhondda Cynon Taf.

This appeal was dismissed on 24 April 2020 mainly on green wedge impacts but nevertheless contains a useful commentary here about the consideration of housing land supply, particularly in relation to the weight to be given to an emerging LDP in remedying the lack of housing delivery.

The Inspector (Joanne Burston again) explained that the decision maker has discretion, based on the evidence and facts of the appeal, to determine the weight to be applied to housing need. In this case the Council again agreed that there was a shortfall of housing land supply but argued that it was taking steps to address this through the emerging LDP. However, in respect of this point, the Inspector stated (paragraphs 36 and 37):

This decision is helpful in noting that until the LDP is found sound then it cannot be concluded that the Council is taking reasonable and timely action to remedy the lack of housing delivery. In the context of the current state of play in respect of LDP preparation and review across Wales, this conclusion will cause some concern for many authorities.

These appeal decisions (all issued after 26 March 2020) are both timely and helpful in demonstrating that housing delivery is still an important consideration. We have not identified any planning appeal decisions in which the revocation of the requirement to demonstrate a five-year housing supply has directly resulted in the housing need case being rejected by an Inspector.

Whilst the weight to be given to the under-delivery of housing is now a matter for the decision maker and will depend on the circumstances of each case, Inspector Thickett sets out some useful and logical parameters for considering the weight to be attributed to under-delivery.

The appeal decisions should act as a warning to local planning authorities about the need to maintain an up-to-date adopted LDP and to ensure that housing delivery meets the trajectory. If housing delivery is insufficient and the LDP is out-of-date, then this (still) presents opportunities for developers to bring sites forward. Indeed, subject to site-specific considerations, local planning authorities should welcome such proposals at planning application stage as an appropriate short-term intervention. Opportunities should be sought to work positively with those authorities that have housing delivery issues, especially where sites are sustainably located, free from constraints and can demonstrate adherence with Planning Policy Wales’ placemaking principles.