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Neighbourhood Plans and Local Plans – Overtaking ahead?

We reported earlier in the year on the Court of Appeal decision in the DLA Delivery case.  The Court of Appeal considered a neighbourhood plan which had come forward in accordance with the emerging local plan, rather than the out of date strategic plan.

The Court of Appeal upheld the decision of the High Court, finding that Neighbourhood Plans (NPs) can be prepared in accordance with an evolving plan before an up to date Local Plan is in place.  However, as discussed previously, this could be a risky approach for NP groups where a local plan with a higher objectively assessed need is subsequently adopted, and the NP quickly becomes out of date.

This is almost exactly the situation in Farnham. The then draft Farnham Neighbourhood Plan (FNP) survived a judicial review of the decision of Waverley Borough Council that the basic conditions were met, on the basis the plan was prepared in accordance with the emerging local plan, rather than the existing local plan. Lang J in the High Court followed DLA Delivery, finding the test that an NP must be in general conformity with the strategic policies in force is a flexible test, and a matter of planning judgment, dismissing the claim.

Following an 88% “yes” vote at referendum, the FNP was formally made in July 2017, becoming part of the development plan for the local area. The FNP allocated land for approximately 2214 homes for the NP period to 2031, based on a need for 2,300 to 2032 in the 2016 pre-submission draft of the Waverley Borough Local Plan.  The FNP reports close cooperation with the Borough Council on housing need.

However, on examination of the draft Local Plan, the Inspector suggested modifications leading to an increase in the housing target from 519 to 590 homes per year, increasing Farnham’s target to 2,780. The Council’s intention is to address this by considering additional sites in Part 2 of the Local Plan. The modifications to the housing targets have been noted by the Council’s Special Executive committee, and authority given to the Head of Planning to agree the final submission to the Local Plan Inspector.  The report to the Special Executive noted that full weight would continue to be afforded to the FNP, Part 2 of the Local Plan will take precedence where there is a conflict, as the more recently adopted document.  It envisages that additional allocations at Farnham will be made through Part 2 of the Local Plan.

While the Council is supportive of the FNP, it must be disappointing for the FNP group who had worked hard to allocate appropriate housing sites that further sites will now be allocated by the Council. While the FNP body could seek to modify the plan, the amendments facilitating modification in the Neighbourhood Planning Act 2017 are not yet in force, and modification is unlikely to be appealing so soon after the original version was made.  To avoid similar situations in the future, other bodies preparing NPs should consider taking a robust approach and set out a strategy for dealing with increases in housing numbers (perhaps by way of future modifications or identifying white land to be released if required), to avoid the result of their hard work quickly becoming out of date.

As discussed previously, the December 2016 Written Ministerial Statement (WMS) provides additional protection for neighbourhood plans, providing that NPs will not be considered out of date where:

  • The Written Ministerial Statement or the NP are less than two years old;
  • The NP allocates sites for housing; and
  • The LPA can demonstrate a three year housing land supply.

This gives NPs some additional leeway, protecting their position where the LPA can meet some, but not all, of its objectively assessed need. However, the recent Inspector’s decision at Thames Farm, Shiplake near Henley on Thames demonstrates how strictly this can be applied.  The Inspector granted permission contrary to NP policies where the LPA had a three dwelling shortfall against three year housing land supply, suggesting that NP bodies should be cautious about relying on the WMS.

Planning and the General Election: keys to long term success

With the General Election drawing ever closer, planning forms the battleground for a several controversial issues close to voters’ hearts, such as fracking and safeguarding the greenbelt. In particular, persistent difficulties in delivering new housing and infrastructure unite the parties in a common cause. More homes are needed, quickly, together with greater certainty around delivery of supporting infrastructure.

The extent to which the next Government succeeds in solving these problems will be determined by its appetite to grapple with a host of underlying difficulties. These include devising an effective model for land value capture, making the CPO process fit for purpose and addressing the chronic shortfall in local authority resourcing.

Despite obvious distractions elsewhere during this campaign, housing delivery still sits atop the planning agenda, with the manifestos all setting targets and the broad route needed to reach them. The Conservatives will point to steps already taken along this long and winding road – most recently through the Neighbourhood Planning Act 2017 and its predecessor the Housing and Planning Act 2016. Similarly, the Housing White Paper affords us the rare luxury of a detailed annex to the aspirations commonly found in (deliberately) loosely drafted manifesto commitments. Whilst less “radical” than badged, it establishes a framework of policy changes aimed at speeding up housing delivery, through measures such as diversifying the market, getting local plans in place and holding the public and private sectors to account for delivery.

Housing delivery at scale is recognised as being paramount. This requires a commitment to supporting the growth of new towns and garden communities – where the worlds of housing and infrastructure collide most spectacularly. The Liberal Democrats propose at least 10 new garden communities whilst Labour also underline the need to start on a “new generation” of new towns. The current system already supports that drive with the introduction of a potentially significant power in the Neighbourhood Planning Act 2017 allowing Regulations to facilitate the designation of areas as new towns and for development corporations to be established.

Whichever party emerges victorious on 8th June, there is a sense that the keys to long-term success are not entirely in their hands. We are witnessing a shift in emphasis towards the increased role of the public sector as an enabler of development. The extent to which they are willing and able to embrace that role will go a long way towards determining whether the same issues – and proposed fixes – will remain on the planning agenda in 2022.

Work in progress

We look at the current status of neighbourhood planning. The government has demonstrated its continuing commitment to neighbourhood planning by naming a Bill after it, including it in a written ministerial  statement and in the housing white paper, and continuing to emphasise its importance in recent appeal decisions. This article considers recent developments and the direction of travel.

Read the full article

This article was first published in Property Law Journal (May 2017) and is also available at http://www.lawjournals.co.uk/.

The new New Towns Agenda

The third reading of any Bill in the House of Lords is normally fantastically dull. That was not true of what is now the Neighbourhood Planning Act 2017. Lord Mathew Taylor introduced a new and apparently innocuous clause that allows a completely new and parallel way of bringing new towns forward. It authorises the rewriting of the existing new town legislation, by regulation, to allow local authorities, or groups of local authorities, to ask the Secretary of State to designate an area as a new town and for a development corporation to be set up.

If agreed by the Secretary of State, then the local authorities will, effectively, step into the role that the Secretary of State occupied in the old new towns. They will control the way in which their new town development corporation is governed, operates and delivers new communities.  They will be accountable for successes.  They will be responsible for failures. Some powers will, inevitably, be retained by the Secretary of State, at least in the short term – the power to confirm CPOs and to authorise Local Development Orders. In time, with true devolution, even these powers could be left to the parent authority.

What will this mean? Many authorities are already exploring the possibility of new towns and particularly garden communities. One of the real difficulties is educating landowners that the cost of developing the necessary community and social infrastructure up front is significant, and that the legacy costs of stewardship will eat into land values, as much as if not more than the traditional enabling costs. This means that the normal landowner model of a minimum land value + a share of net proceeds or overage does not really work.  There is also a need to ensure that all land is bound into the same broad vision and programme. If that is not the case then the allocation of costs can be unfair.  The first phases will have to bear significant infrastructure costs that then increase the value of the land in later phases. If the later phases choose to develop independently then it may be problematic making sure that they bear their fair share of the initial place-making investment. A development corporation model helps to solve this. It allows early and extensive acquisition. It also ensures that the underlying “scheme”, the new town, is more completely disregarded for valuation purposes.

In practice, development corporations should rarely be necessary. Local authorities already hold most of the appropriate powers. However, the use of, or the threat of the use of, a development corporation may well be a helpful bargaining tool. It should allow local authorities to reach agreements with reluctant landowners. It should ensure that all parties contribute and benefit equally. It should be a weapon of last resort.