Planning matters

On Friday, I was delighted to receive a positive decision on the Turnden case. This was 4 years overdue but, from what I hear, perhaps that is not too bad for planning decisions these days!

For those who have not been following this case (notwithstanding national coverage in the press), it is a long story of twists and turns for a proposal of 165 new homes to be delivered by Berkeley Homes.  It all started back in 2020 when Tunbridge Wells Borough Council (TWBC) identified the site as a housing allocation in their draft Local Plan.  It is within the AONB (National Landscape ‘NL’) so a tough call, but TWBC are a heavily constrained Borough (NL and Green Belt) and they took the decision, not lightly and not without a strong evidence base, that they would aim to meet the housing need in full. Berkeley Homes subsequently submitted an application that year which was supported by officers and, in January 2021, the Planning Committee resolved to accept that recommendation and grant planning permission.  All good so far …

However, in his infinite wisdom, Mr Gove thought he knew best and, in April 2021, directed that the application be referred to him.  So, back in September 2021, there was a public Inquiry over a period of a month to consider reams of evidence.  Meanwhile, the Local Plan moves slowly forwards, with the site still allocated.

In April 2023, Mr Gove eventually made a decision, alongside the independent Inspector’s full report. Not surprisingly, in our view, based on the detailed evidence presented to him, the Inspector recommended that the application should be approved, and planning permission granted, subject to conditions and the obligations in the Legal Agreements. Notwithstanding this positive conclusion from an independent party, Mr Gove steps in again and, for two very strange and unnerving reasons (housing supply and design), he disagreed with the Inspector’s recommendation and decided to refuse planning permission.  The planning world, as I know it, was in turmoil [although TWBC boldly marched on … with the site still allocated in their draft Plan and subsequently ‘supported’ at EiP].

However, … the SoS decision was challenged in the High Court, primarily because the data on housing land supply by then was out of date, and DLUHC conceded on that point. The decision was duly quashed by Order of the Court in October 2023.  It was back with Mr Gove … and the planning world held its breath once more.  There was an even deeper intake of breath, and perhaps a despondent sigh, when the new NPPF came out in December 2023 setting out that there only needed to be a 4 year housing land supply.  The writing was on the wall for this application because it was always accepted, throughout the case, that TWBC had over 4 years of supply. It was thought that this was the end, with national politics prevailing over a local decision and an independent Inspector’s assessment.

But this did not, in fact, turn out to be the final turn of the screw for this application and the end of a long battle to deliver new homes that are needed.  Fortunately, a timely general election (to distract the decision makers) and a turn-around in national politics saved the day. Labour were in control and taking the bold step to ensure that planning would deliver the new homes needed. 

So how did the change in government impact on the decision of the Turnden application?  I set out below how I see this decision reflecting political thinking on key topics and, hopefully, how this can give hope to those looking to deliver more homes through the planning system (should I add … quickly and efficiently).

Throughout this case it was always accepted that TWBC did not have a five year housing land supply and that the supply was over 4.5 years.  Mr Gove agreed with the Inspector that there is a clear need for both market and affordable housing in the Borough and at Cranbrook and that the proposed development would make a significant contribution to the delivery of both and meet a shortfall. However, where Mr Gove differed from the Council and the Inspector was that “the current shortfall could reasonably be described as slight, he does not agree with the Inspector at IR810 that the case which has been made out for the need for development of this type and in Cranbrook is appropriately described as ‘a very compelling case”.

Roll forward 19 months and Ms Rayner looks at the case.  “In reaching her conclusions on housing need and delivery, the Secretary of State has taken into the account the effect of paragraph 226 of the Framework, which means that TWBC can now demonstrate a Framework-compliant housing land supply, and the progress of the eLP since the previous decision. As a result, she considers that some elements of the Inspector’s conclusions at IR801-810 in respect of housing need and delivery are now out of date. However, it is undoubtedly still the case that the ability to respond to the need for housing is heavily constrained (IR803), and on the basis of the evidence now before her, in particular the significant weight which she attaches to policy STR/CRS 1 and draft allocation AL/CRS3 of the eLP, she agrees with the Inspector at IR810 that it is reasonable to conclude that there is a compelling case for the need for development of this type and in Cranbrook.

So, what can we conclude from this? When Gove was presented with a shortfall in the housing land supply, he dismissed this out of hand as only ‘slight’, notwithstanding national policy at the time.  Ms Rayner, on the other hand, was faced with a case where there was, technically, an oversupply of housing against national policy and yet she thought that the delivery of homes should carry ‘significant weight’.  Of course there are other factors that come into play here but, nevertheless, the drive to deliver new homes is a clear message.

A lot has been said about design in housing and planning over the years including the recent speech by Matthew Pennycook where he stated that that the Government had “concluded that support to improve the quality and design of new homes and places can be more efficiently and effectively delivered by the Department itself. The Office for Place will therefore be closed down”.

In the Turnden case, Gove considered design - taking a contrary view to the Inspector.  Gove concluded that “The Secretary of State recognises that both the HWAONB Management Plan and the High Weald Housing Design Guide emphasise that housing development in the HWAONB should be landscape-led. Whilst he agrees with the Inspector that the proposed development would deliver landscape enhancements (IR826), he does not find the proposal to be of a high standard which has evolved through thoughtful regard to its context (IR723). Overall, he does not find that the scheme is sensitively designed having regard to its setting. He finds that the design of the proposal does not reflect the expectations of the High Weald Housing Design Guide, being of a generic suburban nature which does not reproduce the constituent elements of local settlements. He also considers that the layout of the scheme does not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the Inspector, the Secretary of State considers that the design of the scheme is a neutral factor in the context of paragraphs 176 and 177 of the Framework and the planning balance”.

So, how did Labour respond to this in the ‘new Labour world’? Ms Rayner concluded that “Whilst the Secretary of State has concerns about the layout and design of the proposal, particularly the sensitivity and appropriateness of the design in the context of its setting, she has taken into account that only 20% of the site would be built on (IR730) and the proposed development would deliver landscape enhancements (IR826). Overall, she considers that the design of the scheme is a neutral factor in this case”.

While Ms Rayner’s conclusion helped to overcome the design issue, it is worth adding that this still baffling as the Inspector, who heard all of the evidence, concluded that “In the context of Settlement as a characteristic of the HWAONB, I do not accept criticism of the kind that describes the proposed development as having a generic layout and design of new housing developments failing to respond to, or reinforce AONB character. As [the applicant’s] evidence illustrates, the design of the proposed development is of a high standard and has evolved having thoughtful regard to its context”.

It is therefore hard to know what more the applicant could have done on design quality. Nevertheless, this does demonstrate the important of keeping design quality as a significant consideration in all application proposals.

This case was all about new homes in the AONB/NL and, as such, it hinged on whether or not exceptional circumstances exist to justify the proposed development in the HWAONB and whether the development would be in the public interest. On this, I would continue to advise that each case must be considered on its merits.

However, there are some useful pointers on some other broader matters, such as the weight to be given to an emerging plan:

… and the weight to be given to benefits, even when the housing land supply is met:

“She has taken into account the changes since the previous decision, including her conclusion at paragraph 42 above that TWBC has a Framework compliant housing land supply, and overall, she considers that the combined weight of the benefits remains as substantial”.

This was a sensitive and complex case and all such cases must continue to be treated on their particular merits.  Many other appeal cases, that I am sure must come down the line, will also be sensitive and will require the same careful consideration.  As always it was a great team effort to, eventually, achieve the right result.  From the beginning we believed in the case and worked hard to present that in the best way. We were vindicated by an independent Inspector, but that turned out not to be enough, as politics at the national level came into play.

The Labour government have come forward with strong rhetoric on the importance of planning to deliver the substantial new homes needed and has begun to flex their muscles on strategic applications.  I would hope that the decision on Turnden is a clear sign that there has been a turn-around in national decision making, with a clear message for local planning authorities on the importance of housing delivery.