England planning news, March 2020
05 Mar 2020
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Government publishes results of the Housing Delivery Test
The Government published its 2019 Housing Delivery Test results on 13 February. The Test compares the delivery of new homes within each local authority, over the previous three years, against each authority’s local housing requirement for the same period.
In the 3rd March parliamentary debate on Housing and Planning (see story below) the new Housing Minister reiterated the Government’s unwavering commitment to enable the housing market to deliver at least 300,000 new homes a year by the mid-2020s, and a million homes by the end of this Parliament.
As figure 1 below shows, for 2019 local authorities pass the test if they have built more than 95% of their local housing requirement. If they fail the test by delivering less than their requirement, they are subject to the sanctions that were introduced by the 2018 revisions to the National Planning Policy Framework. Between 85% and 95% of their requirement figure triggers an ‘Action plan’; between 45% and 85% and they face a 20% land buffer, below 45% leads to the presumption in favour of sustainable development.
This year, as Figure 2 shows, two thirds (67%) of local authorities have “passed” the test by building a sufficient number of homes.
A third of all authorities delivered less than 95% of their local housing requirement and will be required to produce an Action Plan. The Action plan should set out the causes of under-delivery, examine ways to reduce the risk of future under-delivery, and set out measures aimed at improving the levels of delivery. The Action Plans produced by local authorities which failed the test last year vary in approach and format, although most make reference to the importance of having an up-to-date plan, making various improvements to process and performance in approvals, and having a more interventionist role (for example, as housebuilders or through land assembly).
Just under a quarter of all authorities (23%) delivered less than 85%. As well having to produce an Action Plan, these authorities will also be required to add a 20% buffer to their existing local housing requirement for five year land supply purposes.
Eight authorities in total (2%) will face the test’s strictest penalty: the 'presumption in favour' of sustainable development will apply to planning applications for housing in those areas and the Local plan policies most important to housing in these authorities will be deemed out of date. This is a notable increase from last year, when none faced the presumption; this is largely due to the change in thresholds (from 25% to 45%) and the phasing in of the standard method as the basis of the requirement figure. Under the current transitional arrangements, the test will be tougher for the 2020 test, when the threshold will jump to 75% of a housing requirement (as shown in Figure 1).
As an example of the impact of the transitional changes, Milton Keynes devised an Action Plan after only meeting 74% of its housing target; they again face an action plan after this year’s results even though their housing delivery has increased to 94% of its three year requirement.
Our blogs on the North West and Yorkshire and the Humber (links below) look in more detail at the results in those regions.
At a national level, 232,230 new homes were delivered last year – equating to 113% of the combined transitional targets (205,025) set by the Housing Delivery Test. However, this still falls somewhat short of the national need of 272,077 new homes a year as set by the standard method (before local considerations are taken into account). And further short of the Government’s ambition of 300,000 homes each year by the mid 2020’s.
The results, which were originally expected to be published in November 2019, were delayed due to pre-election period rules blocking the Government from making any announcements in the lead up to a general election. Last year there were delays resulting from issues with the ONS’ housing projections and the time taken to collect and audit the data, the 2020 results are scheduled to be published in November this year.
MHCLG, Housing Delivery Test: 2019 measurementLichfields Think Tank, Housing Delivery Test 2019 analysisLichfields Planning Matters, Housing Delivery Test 2019: The North WestLichfields Planning Matters, Housing Delivery Test 2019: Yorkshire and the Humber
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Quotes of the month |
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Housing Minister Christopher Pincher MP
Extract from a House of Commons debate on Housing and Planning, 3 March 2020 |
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Reshuffle: new Housing Minister confirms the matters MHCLG is working on
The Rt Hon Christopher Pincher MP has replaced Esther McVey MP and become the 10th Housing Minister in ten years, following a Cabinet reshuffle on 12 February.
Serving as MP for Tamworth in the West Midlands since 2010, Mr Pincher has held positions within the Treasury, and more recently as Minister of State within the Foreign Office.
On 3rd March the new Housing Minister responded to a Parliamentary debate on Housing and Planning that was secured by Neil O’Brien MP. The debate covered matters including resourcing of planning departments, permitted development, construction of new housing schemes and flooding caused by new development, breaches of conditions relating to site management, adoption of street trees in new developments and housing density.
Mr Pincher responded as follows:
- The Government is committed to reviewing permitted development rights for the conversion of buildings to residential use, particularly respecting the quality and standards of those buildings. The review will report, and the report made available.
- The Green Belt is very important (see quotes of the month), green spaces should to be protected and beautiful places created.
- Forthcoming planning White Paper will include further measures to improve local authority planning enforcement, resourcing, proposals to make the planning process clearer, more accessible and more certain for all users, timely decision making
- The standard method of calculating housing need is being reviewed and the Government will consult on longer-term options in due course “because we recognise that we need to diversify the products on the market in order to drive up supply”.
The Minister's comments sit alongside interesting remarks reported to have been made by MHCLG Secretary of State Robert Jenrick MP on 27 February at a House of Lords event hosted by Create Streets at which he emphasised the need to “substantially" increase housing delivery further and that this would involve “difficult decisions":
“you'll need to reimagine high streets and town centres, you will need to build on green belt land, restoring heritage buildings, and where you do build in the open countryside, you will want to be doing it in a way which we will be proud of in years to come".
Among other ministerial changes, the role of Minister of State (Minister for the Northern Powerhouse and Local Growth) no longer exists. It was previously held by new backbencher Jake Berry MP, who did not accept the new Government position offered to him. Simon Clarke MP is a new Minister of State at the Ministry of Housing, Communities and Local Government (MHCLG) but his role is not yet defined. And whilst not listed as having a role at MHCLG, Baroness Bloomfield of Hinton Waldrist, Baroness in Waiting and Government Whip, has been speaking and answering written questions in the Lords for MHCLG.
Sajid Javid MP has resigned as Chancellor of the Exchequer and has been replaced by Rishi Sunak MP. Mr Sunak previously served under Mr Javid as Chief Secretary to the Treasury. After some speculation in the Press that the Budget might be delayed from its original date of 11 March it was confirmed it will go ahead on that date.
Oliver Dowden MP is the SoS for Culture, Media and Sport and George Eustice MP is the SoS for Environment, Food and Rural Affairs.
Clive Betts MP has been reappointed as Chair of the MHCLG Select Committee; Helen Hayes MP is no longer on the Committee.
UK Parliament, debate on Housing and Planning, 3 March 2020MHCLG
MHCLG Select Committee on Twitter
Conservative Home, Neil O’Brien: Five ways to help resolve the housing crisis
A non-material amendment approved after development starts does not change CIL phasing status
The High Court has concluded that it is not possible for an unphased planning permission to be changed into a phased planning permission for the purposes of calculating CIL liability through a post commencement non material amendment that adds a phasing plan, even if a pre-commencement reserved matters approval included a proposed phasing plan.
Oval’s 2016 outline planning permission had been granted by Bath and North East Somerset Council subject to conditions, including a condition that listed the approved plans and documents; none of the conditions suggested that the development was to be phased.
In 2017, the subsequent reserved matters approval’s plan list included a “proposed phasing plan” dated February 2017; it showed three phases of development. In October 2018, Oval sought a non material amendment to add a phasing plan that was broadly the same as the phasing plan submitted with the reserved matters approval to the list of plans referred to in the plans condition of the outline planning permission. The submitted plan was amended to redraw the boundaries of phase 1 and 2 and approved in February 2019.
Prior to the submission of the non-material amendment application, in 2017, Oval had assumed Community Infrastructure Levy liability for the development. In response to the collecting authority, Oval advised that the development would be phased. According to the judgement:
“This marked the beginning of an exchange of correspondence over a lengthy period of time in which Oval asserted the development was a phased development while the Council denied that was so. In the course of this correspondence, Oval asserted reliance on the contents of the section 106 Agreement, and proposed plan HS3044E (the "proposed plan" referred to in the Reserved Matters Decision) in support of its claim that the planning permission granted in March 2016 was a phased planning permission. In one form or another the correspondence continued until the end of May 2019”.
The High Court considered whether Oval's liability to pay CIL is to be assessed on the basis that the development is taking place pursuant to a phased planning permission. Had the development been considered phased, Oval would not yet have been liable to pay all the CIL claimed by the Council but only that part of it that relates to the phases of the development that have been commenced.
At the Court hearing it was agreed by the parties that development commenced, at the latest, on 15 October 2018.
The Court found that, having assumed liability to pay CIL in respect of the whole development, on 15 October 2018 the chargeable development was the development permitted in March 2016, which was not a phased planning permission. “The non-material change to the planning permission, subsequently authorised by the Council in February 2019, months after the commencement of work, did not alter the position […] The Reserved Matters Decision does not assist Oval's case. It is apparent that by that time, Oval had proposed that the Development be constructed in phases – see drawing HS3044E, the “proposed phasing plan" referred to in the Plans List within the Reserved Matters Decision. But the description of the plan as a "proposed" plan makes it evident that the plan was not an agreed document. Thus, even though plan HS3044E appears in the Plans List in the Reserved Matters Decision, that is not evidence that by that time (6 April 2017) the planning permission was a phased planning permission, let alone that it had since March 2016 it had always been a phased planning permission” (paras 23 and 27 of the judgement).
The judge held that whilst changing the planning permission from an unphased planning permission to a phased planning permission was non-material, it was still a change; he rejected Oval’s submission that this was not a change.
Consequently, the judicial review of the collecting authority’s decision not to treat the outline planning permission as a phased planning permission failed.
R.oao Oval Estates (St Peter’s) Limited v Bath and North East Somerset Council
Expressly referring to visual impact is not a legal requirement when assessing openness
The Supreme Court has concluded that visual impact is not an essential part of the analysis of Green Belt openness in legal or policy terms. It may, however, be one of the matters relevant to consideration of the effect of a development on openness in a particular case.
Darrington Quarries obtained planning permission in 2016 to extend the operational face of its 25 hectare Jackdaw Crag Quarry, located in the Green Belt, by 6 hectares. The planning permission was granted by North Yorkshire County Council’s Planning and Regulatory Functions Committee in line with officer recommendation. Neighbours Samuel Smith Brewery and Oxton Farm challenged the Council’s decision in relation to its interpretation of Green Belt planning policy.
The challenge failed in the High Court, but succeeded in the Court of Appeal on the basis that the officer’s report was deficient as it is did not advise Council Members that “visual impact was a potentially relevant and potentially significant factor in their approach to the effect of the development on the ‘openness of the Green Belt’”.
The Supreme Court considered whether it is necessary to take into account the visual impact of a development in order to assess openness, either in policy or law or because it is so obviously material as to require direct consideration.
The Supreme Court did not agree with the Court of Appeal judges in respect of whether the officer’s report sufficiently addressed to what extent the proposed mineral extraction would preserve the openness of the Green Belt or conflict with the purposes of the Green Belt:
“Those issues were specifically identified and addressed in the report. There was no error of law on the face of the report. Paragraph 90 [of the National Planning Policy Framework, now a slightly amended para 146] does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law”.
The officer’s report did not say that visual impact can never be taken into account, gave weight to visual effects in the context of restoration and “was entitled to take the view that, in the context of a quarry extension of six hectares, and taking account of other matters, including the spatial separation noted […], they did not in themselves detract from openness in Green Belt terms. […]”.
The Supreme Court judges agreed with the High Court judge, “that such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law. For similar reasons, with respect to Mr Village’s additional complaint, I see no error in the weight given by the officer to the fact that this was an extension of an existing quarry. That again was a matter of planning judgement not law”.
The judgement looked at the historical context of Green Belt policy and concluded that whilst the wording might be different there had not been a significant change of approach between Planning Policy Guidance note 2 and the NPPF.
High Court Decision on Heathrow NPS overturned by Court of Appeal
Overturning the decision of the High Court, the Court of Appeal has ruled that the Government’s Airports National Policy Statement (ANPS) is unlawful, having determined that it had failed to take into account its commitment to the provisions set out in the Paris climate change agreement.
Approved in 2018, the ANPS provides the primary basis for determining development consent applications for the planned north-west runway at Heathrow Airport (amongst other airport proposals). However, multiple challenges were subsequently brought against the NPS, from Friends of the Earth, Plan B, the Mayor of London, alongside several London boroughs and the Mayor of London.
The High Court had previously dismissed the challenges, determining that the provisions set out in the Paris agreement were not relevant when preparing the NPS as they were yet to be incorporated into UK law, concluding that the Government was entitled to follow the less ambitious environmental requirements set out in the Climate Change Act 2008.
However, noting that the Planning Act 2008 requires that policies set out in an NPS must demonstrate how they have taken “account of government policy relating to the mitigation of, and adaptation to, climate change”, the Court of Appeal resolved that the term “Government policy” did not have any specific technical meaning and should be applied in their ordinary sense to the facts of a given situation.
“In particular, we can find no warrant in the legislation for limiting the phrase “Government policy” to mean only the legal requirements of the Climate Change Act. The concept of policy is necessarily broader than legislation.”
In light of this, it found that the Government’s commitment to the Paris Agreement plainly formed Government policy prior to the designation of the ANPS. As the Judgement says:
“[…] this followed from the solemn act of the United Kingdom’s ratification of that international agreement in November 2016. Secondly, as we have explained, there were firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers, for example the Rt. Hon. Andrea Leadsom MP and the Rt. Hon. Amber Rudd MP in March 2016.”
A number of other challenges were also made against the decision, relating to the operation of the Habitats Directive, and also on all but one of the issues concerning the operation of the SEA Directive, however, the Court of Appeal confirmed the High Court’s dismissal of these challenges.
The Government says it will not appeal the decision, but it will now need to decide whether to amend the NPS so as to bring it in line with the Paris agreement or whether to re-draft the ANPS completely.
A statement from Heathrow Airports Limited says that it will appeal to the Supreme Court and are ready to work with the Government to address the issue raised by the Court.
Given the Prime Minister’s previously expressed hostility to the Heathrow proposals, the destination for aviation policy is currently unknown.
R.(on the application of Plan B Earth) v Secretary of State for Transport and others
UK Parliament, Written Statement by Grant Shapps, 27 February 2020
HAL, Heathrow Statement: Court of Appeal announcement
Oakervee Review published: HS2 to go ahead
The Department for Transport announced in August 2019 that Douglas Oakervee would chair an independent review of High Speed 2 (HS2)
The Oakervee Review on the HS2 project was released on the 11 February 2020 and ultimately recommended that both phases of the scheme are taken forward.
On the same day the Prime Minister, Boris Johnson confirmed in Parliament that HS2 would go ahead.
One of the key points within the review was the necessity of HS2 to relieve pressure on the existing rail network which is currently operating at capacity. This point, alongside the desire to rebalance the UK economy and help 'level-up' other regions outside of the south east, constitute the main rationale behind the scheme. However, it is suggested within the review that HS2 alone will not be enough to meet the economic objectives of the project and ensuring regional and commuter connectivity is improved remains a significant challenge if the full economic potential of HS2 is to be realised. In this respect, it is suggested that transport infrastructure alone cannot rebalance the UK economy and that other national, regional and local growth strategies must be developed alongside strategic transport development.
On the environment, the review recognises that HS2 will have negative impacts on biodiversity and woodland as well as harming some landscapes. Consequently, the need to regularly review these impacts is stressed given the length of the project, while also ensuring mitigation measures are in place to minimise environmental damage. Phase one of the project is expected to be completed between 2028 and 2031 while phase two of the scheme is expected between 2035 to 2040, approximately five years later than originally intended.
Another substantial aspect of the review is the recommendation that both phase one and phase two of the project are completed, linking the East Midlands to northern regions of Manchester, Yorkshire and beyond. The notion that only phase one between London and Birmingham is completed did not align with one of the fundamental objectives of the scheme, which is to help rebalance the UK economy and help support regional development outside the south east. Given this recommendation to commit to the full Y-shaped network, the current levels of funding based off 2015 projections will not be sufficient and the government will need to significantly commit to provide new levels of funding. Overall, the review suggests the project will cost between £80.7bn to £87.7bn if both phases are built.
Furthermore, it is suggested that the cancellation of HS2 would have significant economic ramifications for the UK as a whole. The supply chain, UK Construction industry and infrastructure planning would all face significant disruption if the scheme was cancelled as well as hindering attempts to economically transform the UK as a whole. The review also considers the fact that there are no readily available alternatives to HS2. Any cancellation of the project would result in years of delay as new schemes are proposed and planned. There would also be a significant financial costs as it is estimated £9bn has already been spent on the scheme. Subsequently the Oakervee review suggested that HS2 is fully commissioned and work begins on phase one as soon as possible.
The Prime Minister said to Parliament:
“In line with Mr Oakervee’s recommendations, we will interrogate the current costs to identify where savings could be made in phase 1 without the costs and delays that would be associated with a detailed redesign, and so that the company can focus solely on getting phases 1 and 2a built on something approaching time and budget, I will create new delivery arrangements for both the grossly behind-schedule Euston terminus and phase 2b of the wider project.
Before those designs are finalised and legislation is introduced, we will also present an integrated plan for rail in the north. Informed by an assessment from the National Infrastructure Commission it will, in line with the findings of the Oakervee review, look at how we can best design and integrate rail investments throughout the north, including Northern Powerhouse Rail between Leeds and Manchester. I have just spoken to the Mayor of Greater Manchester, who has warmly welcomed the project, which I committed to supporting, I seem to remember, during my first days in office”.
The Public Accounts Committee has opened an inquiry into HS2 being given the go ahead and on 4 March questioned officials from HS2 Ltd and the Department of Transport on HS2’s budgetary and schedule overruns, transparency and how the Government intends to prevent similar overruns in the next stages of the project.
According to its webpage “the Committee will also explore how effectively the current accountability structures for big infrastructure projects like HS2 are working”.
Department of Transport, Oakervee Review of HS2UK Parliament, Debate on Transport Infrastructure, 11 February 2020UK Parliament, Public Accounts Committee, High Speed 2 Spring 2020 update
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The Lichfields perspective |
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| Michael Hepburn, Senior Director | ||
Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116