In February my
blog reviewed the first round (or shall we say Season 1?) of Annual Position Statements (‘APS’) – a new annual process introduced by the 2018 NPPF whereby LPAs can ‘confirm’ (i.e. fix) a five-year housing land supply (‘5YHLS’) position. The cliff hanger at the end of ‘Season 1’ was undoubtedly the case of Fylde Borough Council.
Having reviewed the Council’s APS, the Inspector had concluded Fylde could not demonstrate a 5YHLS and thus its supply could not be fixed. This hinged on the APS Inspector’s surprising approach of applying the so-called ‘Sedgefield’ method of calculating the backlog rather than the ‘Liverpool’ approach only recently endorsed by Fylde’s Local Plan Inspector
[1]. This change alone resulted in Fylde being unable to demonstrate a 5YHLS. The Council, much aggrieved, chose to legally challenge the APS Inspector’s conclusion.
Only slightly ahead ahead of the next round of APS submissions, we have our conclusion to this most thrilling of tales.
On April Fools’ Day, the Secretary of State consented to a
High Court Order that quashed the original APS Inspector’s January 2020 report. The Schedule to the Consent Order sets out the position:
“The Inspector concluded, on the evidence, that the Claimant was unable to demonstrate a five-year supply of deliverable housing land as at 1 April 2019. That finding turned on the Inspector’s decision that the Sedgefield methodology should be used to address housing shortfall when calculating the Claimant’s housing requirement, as opposed to the Liverpool methodology endorsed by the Local Plan Inspector. He was not entitled to use a different housing requirement from that set out in the adopted Policy of the Local Plan.
Paragraph 73 of the NPPF provides that local planning authorities “should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old”. Consequently, NPPF para. 73 defines the “housing requirement” against which an authority’s five year housing land supply should be assessed i.e. it is the housing requirement set out in adopted strategic policies where (as in the present case) those policies are less than five years old
Consequently, and for the above reason, the Inspector erred in law by using a housing requirement that differed from the minimum housing requirement in Policy H1 of the Claimant’s recently adopted Local Plan” (our emphasis)
The order is unequivocal. One cannot choose to use a different housing requirement to that which has been adopted in a sound, up to date Local Plan. The clarity of the Consent Order, the fact the Secretary of State didn’t defend the Inspector’s approach, and that this error was made on the first round of a brand new process (and with only three Councils submitting themselves for consideration) – does make one wonder how the Inspector’s rather bold approach to Fylde passed through the net.
A fresh APS Inspector’s report has now been
published (dated 6
th May 2020) which unsurprisingly finds that Fylde can now indeed demonstrate a 5YHLS (5.1 years) on the basis of using the ‘Liverpool’ method to calculate the Council’s backlog.
So what does this mean? Well, Fylde now has its 5YHLS confirmed until the 31
st October 2020 and this can’t be challenged in appeals ahead of this date. Thus, two out of the three LPAs that submitted an APS in the first round of submissions have now had their 5YHLS supply confirmed
[2]: trebles all round.
However, this postscript to Season 1 of the APS saga will soon be superseded. The next APS round has already begun and Fylde has
signalled to PINS its intention to submit a new APS and will need to do so to PINS by 31
st July (along with five other LPAs: Milton Keynes, South Kesteven, Stockton on Tees, Sunderland and Wyre).
Fylde will thus either have its supply confirmed once again in October of this year (assuming PINS meets the deadline) or alternatively an Inspector could find it can no longer demonstrate a 5YHLS on the basis of its new APS. In the event of the latter, the Council will lose the ability to submit an APS until such time as it adopts a new local plan
[3]. Fylde had demonstrated a 5YHLS by the barest of margins in its just confirmed position this time round (a surplus of just 35 units); has that position improved or worsened in 12 months? Fylde may have bought itself five months of 5YHLS safety, but it still may yet be written out of Season 2.
[1] Under ‘Sedgefield’ any backlog in housing delivery is to be met within the 5YHLS period, Under ‘Liverpool’ the backlog is spread over a longer timescale, typically to the end of the plan period. [2] The third – Mid Sussex – fell at the first fence, because its Local Plan was not “recently adopted” as defined by NPPF Footnote 38[3] The two options for confirming a supply is through either a ‘recently adopted’ 2019 NPPF-assessed plan or through a subsequent APS (PPG ID: 68-004). The guidance states that to submit an APS the LPA must either have (ID: 68-013) a recently adopted plan (2019 or 2012 NPPF assessed) or a confirmed land supply following a previous APS. On this reading, any LPA that is found not to have a 5YHLS through the APS process, or simply fails to submit an APS when its local plan (2012 or 2019 assessed) is ‘recently adopted’, loses the ability to confirm its supply until it adopts a new local plan.
