Some more thoughts from the Secretary of State on the relationship between five year housing land supply and development plans

01 Jan 2018

Planning and Environment

To say that in recent months there has seen a seismic shift in national politics is, for once, something of an understatement. The fallout from the EU referendum has been dramatic with some of the main political payers of the last six years or so despatched with little ceremony. An austerity-obsessed Chancellor of the Exchequer has been exiled to the backbenches after his boss swiftly resigned and, subsequently, turned his back on Parliament. In their place is a significantly different Cabinet under a new Prime Minister who is losing no time in rejecting many of the policies pursued by her predecessor. Consequently the country is now faced with great uncertainty: will Brexit actually happen and, if so, how will it impact on the economy and on society? Further uncertainty stems from the fact that, under the UKs’ constitutional quirks, the new Prime Minister appears to be following policies and proposals for which there has been no electoral mandate. Just how much of the Conservative Party manifesto from 2015 remains intact? Which policies now being pursued stem from that document and which are entirely new? Constitutional lawyers may argue until the cows come home as to the rights and wrongs of this state of affairs but the rest of us have to deal with the practicalities regardless.

Against this background, the arrival of Sajid Javid as the new Secretary of State for Communities and Local Government produces new uncertainties for those of us with an interest in planning. Will it be more of the same or will the new Secretary of State follow an agenda more in line with his own political beliefs? Never underestimate the impact that a reshuffle can bring. I recall a conservation that I had many years ago at a Buckingham Palace garden party with a very senior civil servant in one of the main departments of state. At the time there had been a high profile reshuffle within his department. I enquired whether such changes made any real difference. I had expected a reply that would have done Sir Humphrey proud. Instead I was told that such changes can make a phenomenonal difference, depending on the respective identities of the outgoing and incoming Secretaries of State. Apart from the fact that they all had a minor vested interest (involving an informal reshuffle sweepstake) I was told that the mood within a department can change almost instantly. In fact when news of the outcome of that particular reshuffle had filtered down to his department I was told that a resounding cheer went up, especially as news of the identity of the new Secretary of State was revealed.

In a highly political area such as planning, therefore, a new Secretary of State often has a major impact. It must not be forgotten that, somewhat unusually, throughout the Coalition government we had just one Secretary of State (Eric Pickles), assisted by Greg Clark for a large part of the time. That produced a degree of consistency not seen since the days of John Gummer. But all that has changed. Clark has been promoted and given a new department and so we have to begin reading the runes to see if any change in political emphasis and priorities under the new Secretary of State can be discerned.

Of course, all the old problems still remain. A longstanding failure to deliver sufficient new homes continues, arguably given greater emphasis by some of the early comments of the new Prime Minister who has made greater social mobility a key policy objective. The planning system has had to cope with significant and almost constant change, much of which remains to be implemented. The NPPF is under review. Doubts persist over the starter homes initiative in the Housing and Planning Act 2016. A new planning Bill is about to wend its way through Parliament and serious problems with the local plan preparation process have been highlighted by the Local Plans Expert Panel in its widely praised report. All these changes will take time but, meanwhile, developers, planning authorities and communities still have to crack on with the crucial task of building more homes.

One of the most important sources of information as to the direction of national planning policy are decisions on call-ins and recovered appeals. My colleague, Josef Cannon has commented on some recent thinking on a number of crucial housing land supply controversies that stem from two significant appeal decisions relating to extensive housing development in the countryside beyond the Green Belt in Uttlesford. Now we have a further decision to digest, this time in Bath and in relation to five year land supply and a development plan’s sustainable growth strategy.

On 12 September 2016 the Secretary of State dismissed an appeal for residential development of 32 houses at Bishop Sutton which had been refused by Bath & North East Somerset Council. The Council maintained that it had 5.4 years housing supply at district level. The appellant disagreed and argued that it had no more than 3.8 years. Both parties accepted that a 5-year supply could be demonstrated in the Rural Policy Area, covering the village of Bishop Sutton. The Secretary of State then concluded “that it would be reasonable to accept that, while the Council cannot convincingly demonstrate a five year supply of deliverable homes across the District as a whole, there is more than a 5-year supply of housing land in the Policy Areas except Bath.” However the Secretary of State disagreed with his inspector and concluded that, taking account of the uncertainty as to whether there is a 5 year supply of housing land across all the policy areas, and the representations on the impact of the Court of Appeal decision in the Suffolk Coastal District Council v Hopkins Homes (which is, of course, due to be considered by the Supreme Court), the relevant policies for the supply of housing were out of date and that paragraph 14 of the NPPF was engaged. This is, in itself, a noteworthy conclusion. Therefore, and in line with current case law, he went on to consider whether the proposed scheme can be shown to be sustainable development and, if so, to determine whether the material considerations identified were sufficient to outweigh the fact that the scheme was contrary to the development plan.

The Secretary of State agreed with the inspector that the corollary of allowing a greater proportion of housing development in the Rural Areas solely to make up the possible shortfall across the District would be to undermine the CS strategy of directing the main initiatives for growth to Bath. He agreed that some degree of limitation or restraint outside Bath would be appropriate for reasons of achieving a balanced, sustainable growth strategy but that permitting significant growth in excess of the current land supply situation in the Policy Areas outside Bath would undermine the principles of sustainable development set out in the CS, thereby significantly undermining the confidence of developers and residents in the plan-making process. Furthermore no evidence was put forward at the inquiry to show that new employment opportunities have been established in the village to match the amount of committed and proposed housing development. The appeal proposal would therefore go against the underlying strategic objective of the CS to direct growth to locations which can be sustainable in terms of a reasonable match between jobs and dwellings so as to minimise commuting for work purposes, especially by car.

Martin Edwards acted for Bath & North East Somerset Council.