Thames Valley planning news, December 2018

Secretary of State for Housing, Communities and Local Government (SoS) James Brokenshire announced on 1 November that he will be implementing, subject to Parliamentary approval, a locally-led proposal which will incorporate the existing councils in Buckinghamshire to form a new single unitary district council. The merger will incorporate the four district councils within Buckinghamshire: Aylesbury Vale; Chiltern; South Bucks; and Wycombe plus the County Council. To maintain local level engagement and democratic engagement, the encouragement of Neighbourhood Plans and potentially providing for three-member electoral wards is proposed.

The business case for the merger was submitted by Buckinghamshire County Council in September 2016 (‘Modernising Local Government in Buckinghamshire’). The Council’s Future Bucks webpage clarifies the proposed 98 councillors will replace the existing 236 councillors, saving £1.2 million.

A survey conducted by Opinion Research Services found that 75% of a representative sample of residents agreed with the principle of reorganisation in Buckinghamshire and 87% of the 3,000 representations made to the SoS were in support of the Buckinghamshire merger. The merger is further supported by the police, ambulance service, CCG, NHT Trust, Independent Chair of the adult Safeguarding Board, Buckinghamshire Thames Valley Local Enterprise Partnership and Bucks Business First.

However, Aylesbury Vale District Council has expressed their concerns over the merger as it will not lead to a ‘broad consensus’. The Council argues that two unitary authorities would ‘protect, deliver and transform’ the existing and proposed services and regulate the two economic geographies of the county. The two unitary authorities would consist of Aylesbury as one and Chiltern, Wycombe and South Bucks as the other. A written statement made by James Brokenshire (on 1 November 2018) clarifies that he has decided not to implement this proposal for two unitary councils.

The SoS is expected to meet with the district councils to clarify the terms of the proposal, prior to implementation, to provide a strong local democratic engagement at the most local level. This will include details on councillor numbers, where three-member electoral wards are a possibility.

As set out in the Written Statement, the SoS has concluded:

“[...] whilst both proposals meet the criterion for a “good deal of local support”, only the proposal for a single unitary council satisfies the criteria for “improving local government” and for “being a credible geography” and that in any event the proposal for a single unitary council is better able to meet the criteria overall”.

The SoS’s next steps include the preparation of necessary secondary legislation to lay before parliamentary briefs. The new council is expected to be established on 1 April 2020 with the first elections to take place on the 7 May 2020.

The Inspector for the Cherwell Local Plan Part 1: Partial Review (the Plan) has confirmed that he is content for the Examination of the Plan to proceed to the Main Hearings. These are likely to be held in early 2019.

The Inspector accepts that meeting Oxford’s unmet need could, as a general principle, constitute an “exceptional circumstance” and the plan can proceed to the Main Hearings on the basis that Cherwell’s ‘share’ of that unmet need is 4,400 homes, as a working assumption. This reflects the Oxfordshire Growth Board’s agreement, in September 2016, to apportion Oxford’s unmet housing need between the Oxfordshire districts, including the previously mentioned 4,400 homes to be delivered in Cherwell District Council between 2011-2031.

The Inspector for the Vale of White Horse (VoWH) Local Plan Part 2 (LPP2) has issued an interim letter (dated 30 October 2018) which sets out the initial views on matters raised from the examination (held in July 2018). The letter states the Inspector is satisfied that the preparation of the plan has met the duty to co-operate. However, the Inspector concluded that the LPP2 “does not meet the tests of soundness without some modification”.

Key reference for the modifications was given to the need for further consideration of the proposed allocation of the Dalton Barracks/Abingdon Airfield site. This would include justifying the allocation of 1,200 homes within the plan period (or a total of 4,500 delivered post-plan period). The Inspector considered the site to be without exceptional circumstances for removal from the Green Belt until the Council are able to prove deliverability of the new settlement. The Inspector considered parts of the LPP2 evidence base are inadequate in terms of justifying the Dalton Barracks development and invites the VoWH to prepare additional evidence to be considered at examination. The Inspector found that there is no evidence that two safeguarded two routes from the Barracks to to the potential Lodge Hill Park & Ride are viable, and they should be deleted from the LPP2.

The Inspector concludes :

“There are a number of other matters where modifications will be required to achieve the soundness of the plan. However, at this stage I am seeking the Council’s response as to how it wishes to  proceed with regard to the Dalton Barracks proposal in the light of  this letter”

The Inspector expressly stated that he is not inviting comments from other participants on the issues covered in his letter.

The statistics on net additional dwellings in completed in England from April 2017 to March 2018 have been published by the government. 

These figures show 222,194 additional dwellings were completed from April 2017 to March 2018, up 2.2% from 217,345 in 2016/17.  This marks the highest level of house building for a decade, and just 1,340 shy of the 2007/8 peak on the eve of the global recession.

Notwithstanding the availability of this data, and that the National Planning Policy Framework (NPPF) states that the Housing Delivery Test results would be published at a point in November 2018, the first Housing Delivery Test results were not published.

Lichfields has produced an interactive guide to help navigate the new figures.  This considers what the latest data on housing completions indicates about the make-up of house building across England, how this is affected by certain planning considerations,  and at a local authority level, how closely current housing delivery rates are likely to meet the Housing Delivery Test now and in 2020.

A recent High Court judgment has considered the lawfulness of a section 73 planning permission that necessitates a variation to the terms, or description of development, of the original (or an earlier) planning permission.

In Finney v Welsh Ministers, Carmarthenshire resident John Finney sought an order quashing a section 73 planning permission granted on appeal for (amongst other things) two wind turbines with a 125m blade height.  The description of development of the original 2016 planning permission begins “25 year operation of two wind turbines, with a tip height of up to 100m […]”.

The claim was made on the ground that:

“the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a "fundamental alteration" of the prior permission”.

Judge Sir Wyn Williams considered leading authority R v Coventry City Council, ex p. Arrowcroft Group plc (2001) and also more recent (2017) cases; Wet Finishing Works v Taunton Deane BC (2018), and R (Vue Entertainment Ltd) v City of York Council .  He discussed the interpretation of and potential inconsistencies between these cases concluded that both 2017 cases applied the reasoning in Arrowcroft; notably ‘the Arrowcroft principle’ that under a section 73 application a local planning authority:

"is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application".

The judge decided:

“that the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application”

And that he was not minded to depart from this “persuasive authority”.  To accept the claimant’s argument would “lead to an over-technical and inflexible approach to the application of section 73”.

The judge also concluded that the Inspector had considered whether the s73 application constituted a fundamental alteration to the original proposal, but that even if she had not, the Inspector had set out the major points of difference between the two proposals so meticulously that had she considered whether they constituted a fundamental alteration she would have concluded that they did not.

The application for judicial review failed.