11 Apr 2022
This blog forms part of a miniseries covering the nutrient neutrality issue; in this case focusing on a recent Five-Year Land Supply appeal we worked on in Ashford Borough (ref. 3284479).
Nutrient neutrality is becoming an ever-growing delivery problem nationwide. In many cases, schemes are simply unable to be granted planning permission as they cannot support onsite mitigation or the LPA may require a contribution to an as yet unavailable strategic solution. They are therefore reliant on strategic solutions to come forward first leading to a moratorium on granting permissions. A knock-on issue is a conflict with the requirement for LPAs to demonstrate a five-year housing land supply (5YHLS) of ‘deliverable sites’ (NPPF, Paragraph 74). But what does it mean for 5YHLS in practice?
On a macro level, any LPA affected that might otherwise have been performing well can suddenly became vulnerable to a 5YHLS challenge. Sites with existing detailed permissions can build out as expected, but the future pipeline may be held up as those sites with allocations or outline permission in affected areas are now unlikely to come forward in the short term, leaving an ever-growing shortfall.
The most affected LPAs will be those where the majority of the land is subject to the moratorium; especially where this area covers key urban areas or locations where key strategic developments were planned (like Ashford Borough). It will also particularly impact any LPA with a 5YHLS reliant on sites without detailed planning permissions (i.e. allocations and outline permissioned sites). There will also be a growing problem for some LPAs with a recently adopted local plan. One would expect lower levels of completions and these LPAs can accrue a shortfall of supply against their Plan targets; making it harder and harder to demonstrate a 5YHLS.
Going to the specifics of 5YHLS, the policy requirement is to demonstrate a supply of ‘deliverable’ sites. This is where the recent Appledore Road appeal (ref. 3284479) comes in. Housing supply is dealt with in Paragraphs 7 to 20 where it’s ultimately concluded that Ashford Borough Council cannot demonstrate a 5YHLS (a point that was common ground between the Council and appellant, albeit the scale of the 5YHLS shortfall was in dispute). The key points made by the Inspector link back to the definition of ‘deliverable (see NPPF, Annex 2); that sites should be “…available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years” and for Category B sites “clear evidence” must be provided to be considered deliverable.
In the context of the nutrient issue he states:
“Many of the sites that are in the paragraph b) category of the definition are within or on the periphery of Ashford and are affected by the Stodmarsh nutrients issue, … The Council has published guidance on how it can be mitigated, including options on-site or off-site ...
I am not convinced that the evidence presented by the Council is sufficient to clearly demonstrate that all the sites that would be likely to be delayed due to the Stodmarsh nutrients issue would be able to deliver the contributions that it has included within the five-year period.” (Paragraphs 10 and 14).
It is therefore not the fact that the nutrient neutrality issue exists that is the problem. It is the evidential requirements associated with demonstrating a site is ‘deliverable’ in the context of 5YHLS; namely that sites must have a realistic prospect of delivering and be suitable ‘now’ for development. Notionally, if the evidence satisfactorily demonstrated to the Inspector that a strategic solution would be delivered at a certain point in time, with permissions following, and reasonable lead-in times until first delivery after that, then the affected sites may not have been removed (although the timescales as to whether and what they might prospectively deliver in the five year period would still be relevant).
The key implication of this is that as things develop, we should see a clearer picture emerge with regards to the implementation of strategic solutions. Therefore, the impact of the nutrient neutrality issue could be a short to medium term problem in terms of ‘deliverability’ as evidence becomes more and more robust (assuming any strategic solutions are implemented sharpish).
This of course doesn’t have any impact on the immediate problem and LPAs may struggle to convince an Inspector that plans at the very early stages to implement a strategic solution serve to show a ‘realistic prospect’ of completions in the relevant five-year period.
Finally, its worth noting that this appeal shows the policy aim of 5YHLS in action. A lack of 5YHLS – for whatever reason – engages the ‘tilted balance’ of Paragraph 11(d) in the NPPF. This means granting planning permission unless any adverse impacts of doing so would demonstrably outweigh the benefits. In the case of the Appledore Road site, it is outside the nutrient neutrality affected area and the appeal was allowed with the titled balance engaged. It will now be part of the shorter-term solution to the wider delivery problems in the Borough, delivering much needed housing (including 50% affordable) but wider benefits as well.
Image credit: Nilfanion