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Annual Position Statements and ‘Confirming’ a Supply: Review of the Updated PPG
In this second blog reviewing the new Planning Practice Guidance (‘PPG’) section on ‘Housing Supply and Delivery’, I take a look at the changes related to ‘confirming’ a Five-Year Housing Land Supply (‘5YHLS’) through a ‘Recently Adopted Plan’ or ‘Annual Position Statement’ (‘APS’). Local Planning Authorities (‘LPA’) have had the ability to ‘confirm’ (i.e. fix) its 5YHLS position since the publication of the revised NPPF (July 2018). At the time of writing, no LPA has yet confirmed its supply, nor realistically could any have done so based on the wording of the Framework. However, there are obvious incentives to LPAs in having a ‘confirmed’ 5YHLS so it is important to understand the process. We have prepared a simple(ish) flowchart for reference, showing how an LPA in various circumstances can confirm its supply based on the new guidance. Furthermore, whether a plan is ‘recently adopted’ (as per footnote 38 of the NPPF) is key to understanding whether an LPA can confirm its supply. The below diagram visualises when a plan is and is not ‘recently adopted’. As can be seen, it is advantageous for an LPA to adopt a plan between 1st May to the 31st October (in the same year) as that plan will be ‘recently adopted’ for between 12 and 18 months. If a plan is adopted between 1st November in one year to the 30th April in the next, that plan will at most be ‘recently adopted’ for 12 months, but potentially as short a period as 6 months. LPAs should now seriously consider the date of adoption in this context. Other key matters set out in the new PPG: 1) Confirmation that LPAs with a ‘recently adopted’ Local Plan assessed against the previous 2012 NPPF can confirm its 5YHLS through a subsequent APS The PPG (ID: 68-011) helps clarify the recent uncertainty over which local authorities are eligible to pursue an APS that fixes the 5YHLS for a year. Whether a plan is ‘recently adopted’ is determined by Footnote 38 of the NPPF (see diagram 1 above): therefore, in the current circumstances any LPA that has adopted a 2012 assessed local plan since 1st May 2018 to 30th April 2019 could technically have prepared an APS and submitted this to the Planning Inspectorate (‘PINS’) for examination this year. PINS are meant to publish a list on their website a list of LPAs that are seeking to confirmation their 5YHLS. This list does not appear to have been published at the time of writing, but there are 34 LPAs who could technically have notified PINS of its intention to confirm its supply. Of course, the confirmation that these LPAs could submit an APS has only just been published, so it is unlikely many would have tried to prepare one: that said, both Fylde and Wyre Councils have undertaken consultations on their APSs. Many will therefore have lost the ability to confirm a supply in future years (see point 3 below). Going forward, any LPA that adopts a 2012 NPPF-assessed local plan on or after 1st May 2019 has the ability to notify PINS by 1st April 2020 of its intention to prepare an APS. 2) It also appears that a ‘recently adopted’ Local Plan assessed against the 2012 NPPF does not, in and of itself, ‘confirm’ a 5YHLS The wording of the old guidance did suggest this might be the case, but a number of appeals decisions determined the contrary[1]. The new guidance of PPG ID: 68-011 appears to only permit 2012 framework plans to benefit from the ability to produce an APS to confirm a 5YHLS post-adoption, rather than relying upon the adoption of the plan itself. This makes sense given 2012 NPPF plans were tested against the old definition of ‘deliverable’. 3) If an LPA fails to confirm its supply, it cannot re-confirm its supply again until it adopts a new local plan 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 new guidance states that to submit an APS that 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 in future years until it adopts a new local plan. 4) Ambiguity remains for plans adopted between 2nd April to 30th April As per our diagram, a plan (2012 or 2019 Framework) adopted between these dates is only ‘recently adopted’ until October 31st in that same year. However, as per guidance that LPA will need to advice PINS of its intention to prepare an APS by the 1st April (PPG ID: 68-012) in that same year: i.e. prior to adopting that plan. That LPA could not wait until April in the next year as the plan would no longer be ‘recently adopted’ as of October in the current year. That LPA would therefore fail the first stage of APS assessment (PPG ID: 68-013). Presumably, that LPA would need to notify PINS of its intention to adopt a plan before 30th April and  prepare an APS before the 1st April in that year. 5) Big questions remains regarding the level of consultation required for an APS Guidance on the consultation process for APSs remains vague but the key test is whether “satisfactory stakeholder engagement has been carried out” (PPG ID: 68-013 – taken across from the former PGG ID: 3-051). The new guidance includes a slightly updated list of potential stakeholders, detailing who the authority can (not ‘should’ as per the previous guidance – PPG ID: 3-052) engage with. The guidance now also states that “Beyond this [list], it is for the local planning authority to decide which stakeholders to involve.” (PPG ID: 68-016). It is too early to tell what degree of consultation is ‘satisfactory’, given no APS has yet been examined, but it would appear that the PPG overall (both new guidance and that consistent with the previous version of the PPG) allows for a more limited and potentially insular engagement process. This could lead to a lack of objective voices properly challenging the assumptions of developers/LPAs regarding, for example, delivery rates and lead-in times for sites in the trajectory. This is important because real risks exist of trajectories being affected by self-serving (unconscious) ‘optimism bias’ of local authorities and those developers with sites in in the 5YHLS. This risk needs to be mitigated and local plan examinations and s.77/78 inquires show the benefit of external challenge in helping PINS keep the process ‘honest’. We will need to wait and see how the evidence submitted as part of an APS is assessed in practice. [1] APP/M2325/W/17/3179277, APP/W0530/W/18/3209758, APP/D3125/W/18/3202562


Special Delivery: The new PPG on ‘Housing Supply and Delivery’ – determining the five-year housing land supply
In wider updates to the Planning Practice Guidance (‘PPG’), a new section on ‘Housing Supply and Delivery’ has been published. It mostly incorporates existing content from the now much reduced ‘Housing and economic land availability assessment’ section. In this first blog overviewing the new PPG section, I take a look at key changes regarding deliverability, ‘clear evidence’, and minor clarifications as to how to calculate five-year housing land supply (‘5YHLS’), which will to some extent help clarify matters following a series of divergent approaches in recent appeal decisions. Deliverability The definition of deliverable in the revised NPPF (July 2018 and its February 2019 update) introduced a more rigorous approach to assessing whether a Local Planning Authority (‘LPA’) could demonstrate a 5YHLS. It represented a critical step towards the objective of “significantly boosting the supply of homes” as discussed in this recent blog. However, the PPG underpinning the assessment of a whether a site is ‘deliverable’ lacked clarity, a point seemingly conceded by the Government[1]. The primary new guidance, ref. ID 68-007, replaces former PPG paragraph ID: 3-036. 1) Additional guidance on what can form ‘clear evidence’ Referring to the type and form of information that can provide ‘clear evidence’ (or what the PPG now refers to as ‘further evidence’) to justify sites that fall within point (b) of the definition of deliverable (i.e. sites that have an outline permission for major development, or allocated sites), the new guidance has been fleshed out to indicate such evidence may include: “current planning status – for example, on larger scale sites with outline or hybrid permission how much progress has been made towards approving reserved matters, or whether these link to a planning performance agreement that sets out the timescale for approval of reserved matters applications and discharge of conditions; firm progress being made towards the submission of an application – for example, a written agreement between the local planning authority and the site developer(s) which confirms the developers’ delivery intentions and anticipated start and build-out rates; firm progress with site assessment work; or clear relevant information about site viability, ownership constraints or infrastructure provision, such as successful participation in bids for large-scale infrastructure funding or other similar projects.” The guidance elaborates on and combines the bullet points from its predecessor. There are new references to ‘firm progress’ for the submission of an application or site assessment: still suggesting the need for some tangible evidence to be published/corroborated with developers. But gone is the specific reference to a ‘statement of common ground’ (SoCG), removing any suggestion that a SoCG is a pre-requisite for clear evidence on a site being deliverable – supporting the findings of the ‘Land to the South of Williamsfield Road’ appeal inspector[2]. The new guidance also states that to demonstrate a five-year supply “robust, up to date evidence needs to be available”. Combining this with the references to ‘current planning status’ suggests that the ‘Woolpit’ principles[3] regarding the temporality of evidence to the base date should not be applied so strictly. The new wording could result in trajectories becoming more of a ‘living’ documents. But this does not address the problem where new evidence is used to retrospectively justify a supply position with an increasingly old base date, whilst not providing enough information to show forward visibility over the next five year. 2)  Further clarification that the lists are ‘closed’? The PPG appears to further clarify that types of sites not listed in the definition of deliverable (such as emerging allocation sites) are not types that can be considered ‘deliverable’. Its use of the word ‘namely’ in listing four types of site which require further evidence to be considered deliverable indicates the list is closed. Appeal decisions have generally been consistent in supporting a ‘closed definition’. That said, in the recent Secretary of State decision at the ‘Former North Worcestershire Golf Club’[4] the Inspector accepts that sites that fall outside the definition of deliverable could be deliverable if there was evidence that housing completions will occur within the five-year period. However, whilst the Inspector’s conclusions were based on the old PPG the actual Secretary of State decision was issued after the new guidance was published. Consequently, there remains ambiguity on this point. Removal of guidance related to local benchmarks for lead-in times/delivery rates A key part of any five-year land supply assessment is considering how quickly deliverable sites will deliver new homes: how long will they take to deliver completions and at what build rate. Former PPG paragraph ID: 3-047 had stated: “Local planning authorities may need to develop a range of assumptions and benchmarks to help to inform and test assessments. Assumptions can include lapse/non-implementation rates in permissions, lead-in times and build rates, and these assumptions and yardsticks can be used to test delivery information or can be used where there is no information available from site owners/developers to inform the assessment. Assumptions should be based on clear evidence, consulted upon with stakeholders, including developers, and regularly reviewed and tested against actual performance on comparable sites. Tables of assumptions should be clear and transparent and available as part of assessments” (my emphasis). This paragraph, and any reference to the need to develop local assumptions (i.e. regarding lead-in times and delivery rates), has been removed from the PPG. While it is ought to be obvious that assumptions over how much sites will deliver in the five-year period should be based on robust evidence, the lack of guidance on this point is unfortunate. Further minor clarifications Pepper potted throughout the new section are various clarifications about technical issues that can mostly confirm what has become common practice over the past twelve months. While many could be seen now as ‘stating the obvious’, these clarifications remove any ambiguity there might have been and presumably answer questions that had been posed to MHCLG. Clarification that sites that fall within point (a) of the definition of deliverable[5] are “deliverable in principle” (ID: 68-007). Buffers are not cumulative (ID: 68-022) and should be applied to any backlog accrued (ID: 68-031) Further clarification as to why backlog is not added where the standard method is used (ID: 68-031). Clarification that whether an LPA can or cannot demonstrate a 5YHLS has no bearing on the Housing Delivery Test results (ID: 68-033). Confirmation that consequences of the HDT (i.e. 20% buffer and action plan) apply concurrently (ID: 68-042). Interestingly, the guidance does not clarify whether an ‘oversupply’ of housing in the early years of a local plan should affect calculations of housing land supply, a topic that was the unresolved subject of a recent High Court judgment.[6] Image credit: Woodland Animations Ltd, a DreamWorks Animation Company [1] As explained in its February 2019 response to Question 5 of its earlier consultation:[2] APP/E2001/W/18/3207411[3] APP/W3520/W/18/3194926, DL70[4] APP/P4605/W/18/3192918 (IR14.47)[5] Annex 2, NPPF[6] Tewkesbury Borough Council v Secretary of State for Communities Housing and Local Government & Ors [2019] EWHC 1775 (Admin) (08 July 2019)