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What happens to old applications?

The question of what powers LPAs have to deal with old planning applications is raised by both applicants, concerned that their planning application may be unilaterally withdrawn, and LPAs, keen to understand their options for dealing with undetermined applications.

A LPA can decline to deal with an application if: (i) it is not made in the prescribed form; (ii) the circumstances set out in section 70A of the Town and Country Planning Act 1990 (‘TCPA’) apply (namely, the LPA / Secretary of State has refused a similar application in the previous 2 year period and there has been no significant change in the relevant considerations); or (iii) it constitutes an overlapping application under section 70B TCPA.  However, there is no power for an LPA to actually withdraw a planning application.

Instead, an LPA may seek to record the application as “finally disposed of” to avoid the application remaining open indefinitely. What does this mean?  What is the effect?

“Finally disposed of”

The term “finally disposed of” is used in article 40 of the General Development Procedure Order 2015 (‘GDPO’).  Under article 40(2) GDPO, each local planning register authority must keep a register of every live application for planning permission relating to their area.

Article 40(13) GDPO sets out the circumstances in which an application can be treated as finally disposed of.  In summary, this is where an application has been:

  1. granted or refused by the LPA  and the time limit for appealing has expired without appeal;
  2. referred / appealed to the Secretary of State, who has issued a decision and any application to the High Court has been finally determined;
  3. withdrawn before being decided by the LPA / Secretary of State or an appeal has been withdrawn before the Secretary of State has issued a decision; or
  4. finally, the period for determination and appeal has expired no decision has been made.  This means that a LPA can simply record an application as finally disposed of as soon as the period for determination and appeal has expired – so watch for that date.

Once any of these requirements are satisfied, the LPA may treat the application as finally disposed of and elect to remove the application from its Planning Register.

Best Practice for applicants

To avoid an application being finally disposed of, applicants should either: (i) agree to extend the time period for the Council to determine the application; or (ii) if the LPA fails to determine the application within the statutory period, appeal on the grounds of non-determination. Applicants should note that if the application period is extended, the right to a refund is lost, even if the authority fails to meet the extended deadline.

Best Practice for LPAs

Once the date for determination has passed, consideration should be given at regular intervals to whether the application should be deemed “finally disposed of” and removed from the Planning Register. Given the cost and expense of submitting an application an LPA should notify the applicant of its intention to treat an application as “finally disposed of” before doing so.  This should set out a timetable for dealing with any outstanding matters.

Refusal as an Alternative

Rather than recording an application as “finally disposed of”, LPAs could simply refuse the application. However, LPAs are often  keen to avoid this course of action for 2 reasons:

  1. Refusal rates are monitored nationally and, in theory, LPAs with clear policies and effective pre-application advice should issue fewer refusals.  LPAs may therefore be concerned that refusing such application will have a negative impact on their performance figures; and
  2. It would reinstate an applicant’s right to appeal.
  3. Given the above, it is likely that LPAs will continue to treat applications as “finally disposed of” unless a formal procedure for LPAs to withdraw planning applications is implemented.  This is unlikely to be high on the agenda at any time in the near future given the raft of more pressing planning matters.

Neighbourhood Plans Fudge

The Government’s solution to the so-far intractable problem of Neighbourhood Plans that do not meet housing needs is here in the form of a Written Ministerial Statement (WMS) calling time on the  relative certainty provided by the NPPF and firing the starting gun for changes to the NPPF due with the issue of the Housing White Paper early in 2017.  Most Neighbourhood Plans (NPs) will be going nowhere sensible, even more emphatically than ever.

Nothing comes of nothing

The Courts have confirmed that the Examination tests for a Neighbourhood Plan are a cake walk that does not require any sensible relationship with strategic goals of meeting Objectively Assessed Needs. NPs can be passed fit for service at Examination simply having “regard to” national policies where it is “in general conformity with the strategic policies” that may date back to the 1990s and have little or no relationship to the ongoing mess of housing delivery.

Equally, the ability to put NPs in place without any up to date strategic policies – and the endless snakes and ladders of the Local Plan process – creates a challenge for those promoting NPs as a positive framework for local growth.  Adopted NPs may provide a warm glow that immediately fades as an absent overarching housing land supply weighs in under paragraph 49 of the NPPF.

The Government’s response to date has been wholly political.  In some cases NPs have been effectively ignored; in others the out of date NP policies have been given determinative weight, refusing permission for 100 homes at Yapton in an area of housing need with 3 years’ HLS on the basis that out of date NP policies should be given “significant weight”.

Sticking Plaster Applied

laiThe WMS states that

relevant policies for the supply of housing in a neighbourhood plan … should not be deemed to be ‘out-of-date’ [under NPPF49] where […]”:

  • the WMS or the NP are less than 2 years old
  • the NP “allocates sites for housing”
  • the LPA “can demonstrate a three-year supply of deliverable housing sites”.

Cue some authorities currently bobbing around on the Local Plan process to ditch infrastructure planning, batten down the hatches with a 3 year supply and encourage NPs through the process.  Cue some NP that allocate a couple of single unit sites being treated as up to date even if there remains a housing shortfall in the neighbourhood.

A far better solution would simply be to require the NP examination regime to grapple with the unconstrained Objectively Assessed Needs for their area and plan to meet an equitable slice of them until the Local Plan comes along. NP authors are, after all, engaging in devolved governance.  With that great power comes great responsibility.

Autumn Statement: mood music?

In the absence of the Housing White Paper, the industry is still left needing to mind the gap.  We have simplified budgets – abolishing the Autumn Statement – but no hint of simplified planning for growth.

The overall commitment to housing is welcome mood music, but the lack of detail on powers and fiscal incentives to support locally-led Garden Towns to deliver at the scale needed leaves a hole.  Expanding grant funding for affordable tenures is great news but at £25,000 per unit is not going to be life changing.

hamThe £2.3bn Housing Infrastructure Fund could be a game changer if it is used to reward areas for proactively planning for growth. Making an up to date housing land supply a condition for at least some of the funding would dangle the right carrot for authorities that currently only have the stick. The lack of fiscal measures for new settlements – incentivising forward funding of major infrastructure that can unlock delivery at real scale – is disappointing though.

Affordable Housing is heading towards life support – delivery in 2015-16 was 52% lower than last year.  The announcement in the Autumn Statement of a funding injection to deliver 40,000 affordable homes is welcome. It is a clear recognition that addressing the housing shortage is not simply about building more homes.  Yes, we need more but they must meet a variety of needs. There are further signals of a softening of the Government’s stance on Starter Homes – tenure flexibility replacing David Cameron’s commitment to a single tenure.

Without the Housing White Paper, there is also still a wait to see how the NPPF is going to be reshaped and in particular how housing land supply and Local Plan duties will be re-set following expert advice on accelerating delivery. If the Community Infrastructure Levy is to be replaced by a simplified flat national charge, the effect on infrastructure funding and the transitional arrangements need to be understood now, so that schemes in the pipeline do not get put into suspended animation.

The statement gives some clues about the Government’s direction of travel but, funding commitments aside, offers little substance.  We still await the detail in the Housing White Paper which we are told will be published “soon”.  Reasons for the delay are unclear. Have responses to leaks on more radical measures, such as penalising developers for slow delivery, prompted a re-think?

Improving the use of Planning Conditions?

Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.

Long game

This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice.  As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.

Current proposals

textThe DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.

There are 2 key elements to the Government’s proposals:

  1. Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
  2. Prohibition of specific types of conditions.

1) Restriction on the use of pre-commencement conditions

LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced.  Of course, there is a risk that front loading the process will lead to delays in planning applications being determined.  There are several practical implications:

  • Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
  • The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
  • The restrictions will not apply to outline permissions. The Consultation does not explain why.  However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.

2) Prohibition of specific types of conditions

At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.

The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.

Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.

Conclusions

The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.

Neighbourhood Planning Unchained? The Neighbourhood Planning Bill 2016

Having lost its infrastructure component between the Queen’s Speech and publication, the slimline Neighbourhood Planning Bill had its first reading in the House of Commons earlier in September, and its technical consultation is open for responses until 19 October 2016.

The most interesting element of the Bill from a neighbourhood plan perspective is the process for modifying a neighbourhood plan – although the requirement for subsequent regulations means the precise effect is not yet known.

nhdChanges to bear in mind

This provision is helpful following the changes to the Planning Practice Guidance made earlier in the summer, which suggested that a fresh neighbourhood plan process would be needed (including a referendum) to update a plan where its policies become out of date.

The Bill provides a three tier process:

  • The local planning authority may make minor modifications with the consent of the neighbourhood planning body, without further consultation, examination or a referendum.
  • Where more substantial changes are proposed, a streamlined process is available (as long as the changes do not change the nature of the plan).  An examiner will then consider the amended plan (normally via written representations, and a further referendum is not required).
  • If the modifications would change the nature of the plan, a fresh neighbourhood plan process would be required. 

While it is questionable how streamlined this written representation process will be, and whether it would apply in circumstances where neighbourhood plans must be updated to be in general conformity with new local plans, the prospect of a quicker and simpler way of modifying a neighbourhood plan is to be welcomed.  Owners and developers will need to monitor carefully whether changes are being made that would prejudice their interests (and whether the process is being followed properly).

Weight

There are also several provisions which seek to give greater weight to neighbourhood plans, perhaps with political intentions. For example, provisions give weight to neighbourhood plans which have passed referenda but have not formally been “made” by the local authority.  It is not clear how much of an issue this has been, particularly given the current Planning Practice Guidance which states that emerging neighbourhood plans can be a material consideration, referring back to paragraph 216 of the National Planning Policy Framework weighing of emerging plans.  However, the Government is clearly keen to emphasise the importance of neighbourhood plans, and make it clear that local planning authorities cannot limit the consideration of neighbourhood plans by failing to “make” them. The Bill also requires local planning authorities’ statements of community involvement to set out their policies for giving advice and assistance with the making and modification of neighbourhood plans.

These changes demonstrate the continuing focus on and political will behind neighbourhood planning.

 

High Court clarifies application of presumption in favour in heritage harm case

high courtThe High Court has provided further guidance on the application of the presumption in favour of sustainable development (paragraph 14 of the NPPF) in Forest of Dean District Council v Secretary of State for Communities and Local Government & Another [2016] EWHC 421 (Admin). The case is helpful for authorities resisting appeals where there is an absence of five year housing land supply.

Permission was granted on appeal for a housing scheme in the absence of a five year housing land supply (HLS). The Inspector applied NPPF49 (which engages the NPPF14 presumption in the absence of a 5 year HLS). The presumption recommends approval where there is no 5 year HLS, unless “the adverse impact of doing so would significantly and demonstrably outweigh the benefits, … or specific policies in the NPPF indicate that development should be restricted.” That includes where the plan has only recently been adopted (Woodcock Holdings Limited v Secretary of State for Communities and Local Government and Anor [2015] EWHC 1173 (Admin)).  NPPF126 to 134 provide specific policies on designated heritage assets.  NPPF134 requires less than substantial harm “to be weighed against the public benefits of the proposal…“.

The scheme was acknowledged to cause ‘less than substantial’ harm to the character and appearance of a nearby Grade II listed farmhouse. The Inspector treated that harm as outweighed by the overall public benefits. The authority’s grounds of challenge under section 288 of the Town and Country Planning Act 1990 included that he had wrongly applied the presumption, by failing to treat NPPF134 as a policy indicating that development ‘should be restricted’.

Coulson J held that NPPF134 is a policy “restricting development” (despite the fact that it does not contain a restriction), interpreting that phrase broadly.  With the presumption disengaged, an “unweighted” cost-benefit balancing exercise must be undertaken.

The finding of harm (regardless of whether it is “substantial” for NPPF purposes) gives rise to a statutory, albeit rebuttable, presumption against the grant of consent (South Lakeland District Council v Secretary of State for the Environment and Another [1992] 2 AC 141) being outweighed by material considerations. Applying the first, weighted, limb on its own meant that it was likely that the wider statutory presumption of refusal where there is any harm to designated heritage assets had been lost.

There is likely to be a broadening of the search for ‘restrictive’ policies in defending refusals. That said, where the decision taker has concluded that there is inadequate HLS and the overarching legal hurdle to approving less than substantial harm has been cleared, it should ultimately make little difference to the outcome.

Transport and Works Act Order upheld in heritage case

high courtIn Whitby v Secretary for Transport & Ors [2016] EWCA Civ 444 the Court of Appeal has given its reasons for dismissing challenges to the Transport and Works Act 1992 (TWA) Order and related planning permission and listed building consents for the Ordsall Chord rail scheme.  The judgment confirms that the decision-makers are entitled to undertake a wide ranging balancing consideration when considering harm to designated heritage assets.

All in Order

The Secretary of State for Transport made the Network Rail (Ordsall Chord) Order under the TWA and directed that planning permission for the work to be deemed to be granted under section 90(2A) TCPA 1990. The Secretary of State for Communities & Local Government granted ten application for listed building consent (for demolition, partial demolition and alteration of affected listed buildings).  The Inspector and the two Secretaries of State were presented with an alternative alignment to that proposed in the Order.  The scheme was recognised as delivering significant public benefits (at a cost of substantial harm to listed buildings, their settings and the character and appearance of nearby conservation areas).  An alternative option would have avoided this harm, but damaged the regeneration potential of a key development area.

Heritage duties in play

In deciding whether to grant listed building consent and planning permission the Secretaries of State were required to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” under sections 16(2) and 66(1) of the Planning (Listed Buildings & Conservation Areas) Act 1990.  Effects on conservation areas fell to be considered in the same way (under section 72(1)).  Preservation means doing no harm, with “considerable importance and weight” to be given to avoiding such harm (Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137). The NPPF recommends that permission should be refused for any schemes that would lead to “substantial harm” to a designated heritage asset, unless there are substantial public benefits of doing so that outweigh the harm (or an absence of alternative uses and viability constraints combined with a beneficial end use of the site as part of the consent).

Working through the NPPF policies on heritage assets will generally allow an inference that the statutory duties have been properly taken into account (Jones v Mordue [2016] 1P&CR12).  The practice guidance in force at the time of the Inquiry suggested that there should be no other reasonable means of delivering the same public benefits (including through the useful alternative sites) where substantial harm is justified.

Alternative approaches

The Court held that the Inspector had clearly given considerable importance and weight to the desirability of preservation. Both the Inspector and the Secretary of State were also held to have taken the relevant NPPF policies into account.  Considering the case for the proposals and the harm they involved against the reasonable means of delivering similar public benefits (including through appropriate alternative sites with wider adverse effects) was entirely appropriate.   The ultimate test is whether having rigorously tested the harm it is considered necessary for the purposes of the wholly exceptional policy requirement.  The reasons why the alternative option was not appropriate had to be considered but this did not mean that the burden of proof had been switched to the objector.

The case confirms that whether alternatives that would cause lesser harm to heritage assets would themselves have significant difficulties or cause their own harm (whether to heritage assets or other planning interests) is a perfectly acceptable consideration in addressing the question of appropriate alternatives and the necessity for the harm to the assets. The weight given to the other harm relative to the heritage asset harm is a matter for the decision maker as long as he or she gives considerable weight to the statutory purpose.

High Court allows relaxed view of needs on appeal

high courtThe High Court has adopted a flexible approach to dealing with ‘objectively assessed needs’ (OAN) on a planning appeal in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin). In considering an appeal against refusal of permission for housing, the Inspector had to decide whether the authority could demonstrate a 5 year supply of deliverable housing sites against OAN.  If not, NPPF policy recommends that restrictive local housing policies are supplanted by the presumption in favour of permission.

The Core Strategy included a ‘maximum’ housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a 5 year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin)).

The Inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under Section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). The High Court dismissed the challenge, on the basis that the upper/lower level figures provided a ‘context for assessing housing need’ and that nothing in the NPPF should prevent decision makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission“.

The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal Inspectors being diverted into a statistical “sojourn in a garden of delights” on OAN.  Care is needed, though:

  • It does not address the situation where reliance on OAN is required to ‘switch off’ restrictive housing policies and engage the NPPF presumption.
  • It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the Inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land.”
  • The maximum figure the Inspector used for the upper limit of the OAN ‘range’ in Dartford appears to have been derived from a historic Regional Spatial Strategy policy set by reference to policy-based environmental constraints.  It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such ‘policy on’ considerations (St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610).

Neighbourhood watch

signNeighbourhood Planning remains a political priority and is one of the areas for which Planning Policy Guidance has recently been updated.  Following the Woodcock Holdings decision, relating to the Husterpoint and Sayers Common 2031 Neighbourhood Plan, the recommended approach to Neighbourhood Plans emerging before up to date Local Plans are in place has been clarified.

Already clear?

In Sayers Common, the Secretary of State dismissed an appeal despite his Inspector’s recommendation to allow it.  He concluded that the proposal would conflict with the Neighbourhood Plan, formally made after the Inspector’s report.  Permission was refused as the proposal would conflict with a requirement to enhance the existing settlement pattern, and was considerably in excess of the 30-40 dwellings the Neighbourhood Plan considered could be accommodated during the plan period.

However, this was quashed when Woodcock Holdings Limited successfully challenged the decision, on the basis that the Secretary of State had failed to identify the nature and extent of the conflict with the Neighbourhood Plan, had not applied the presumption in favour of sustainable development, the PPG guidance (that permission would seldom be refused for a pre-examination draft plan had not been complied with), and that the NPPF policy regarding weight to be afforded to an emerging plan had not been followed. The judgment did conclude that a neighbourhood plan could come forward ahead of a Local Plan, but the legal challenge was allowed on all grounds (see our blog on the detail).

Back to the future

The planning application has been re-determined by the Secretary of State, who again refused permission on the basis that it was not in accordance with the Local Plan or the now-made Neighbourhood Plan, to which he gave “careful consideration”.  He also gave the emerging Local Plan “very limited weight”, and reached the same conclusions regarding conflict with the policies as before.

As discussed previously in relation to the DLA Delivery Limited case, which challenged a Neighbourhood Plan prepared in accordance with an emerging local plan (rather than the existing expired core strategy), there has been debate on the treatment of Neighbourhood Plans which come forward in the absence of an up to date Local Plan.  Recent updates to the Planning Policy Guidance clarifies the Government’s position where a Neighbourhood Plan comes forward in advance of a new Local Plan. The Guidance states that:

  • Neighbourhood Plan policies “may become out of date, for example if they conflict with policies in a Local Plan that is adopted after the making of the neighbourhood plan. In such cases, the more recent plan policy takes precedence“.
  • communities may decide to update all or part of their Neighbourhood Plans where they have become out of date, which will require a fresh examination and referendum, putting a considerable burden on Neighbourhood Plan steering groups.

The best way to avoid this is to ensure that Neighbourhood Plan policies either do not interfere with meeting Objectively Assessed Needs or, more difficult where there is no proper assessment of needs on the table, that any restraint policies are consistent with maintaining a 5 year housing land supply. The PPG update does not suggest that a Neighbourhood Plan that is immediately out of date at adoption – because its policies thwart a 5 year Housing Land Supply – should be given more weight than the policy imperative to maintain housing land supply and meet OAN.

In Woodcock Holdings the relevant parts of the Neighbourhood Plan were held to be inconsistent with the NPPF in this sense and so unlikely to survive either examination or allow a finding of prematurity.  The latest Sayers Common decision does not explain how an out of date set of NP settlement policies could be given overriding importance relative to national policy requirements in that sense.

Affordable snakes and ladders on small sites

The judgment in the battle of wills over the Government’s small sites affordable housing and Vacant Building Credit policies has concluded, for now, with the Government victorious in the Court of Appeal. This blog considers the practical impact of the Vacant Building Credit.  What are the wider implications of the judgment for affordable housing decisions and policies?

Policy on the hoof

cartoonThe process by which the policies were introduced was surprising, but not unlawful.  However, two elements of the judgment may prove controversial:

  • firstly, the acceptance of a retrospective Equalities Impact Assessment where complying with the Public Sector Equalities Duty when taking the decision where the assessment was ‘adequate and in good faith’ and original decision “would not have led to a different conclusion“;
  • secondly, that Ministers are not required to have regard to material considerations when making national planning policy given that it relies on the exercise of crown prerogative powers. This will seem obscure to those living outside the legal bubble.

Common sense still allowed

Policy is just policy. The judgment confirms that:

  • government, whether central or local, may state policy ‘rules’ absolutely, but
  • decision takers must consider them without treating them as absolute – their discretion to weigh things in the balance and do something different cannot be fettered by policy.

For applications, that means:

  • complying with the duties to consider all relevant issues and determine in accordance with the development plan unless there are reasons not to (Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning & Compulsory Purchase Act 2004);
  • local authorities are entitled to weigh the Government’s policy against their own plan policies, the demographic evidence on which they are based and any economic evidence on the viability of specific ‘small sites’.  There will inevitably be an upsurge in appeals as they do so, since applicants will generally expect the Government to follow its own policy on appeal;
  • where there are perfectly sound reasons for a Localist decision, there should be little scope for adverse costs awards.  The difference in weight to the national policy is simply a matter of planning judgment – which the Court of Appeal decision emphasises must be carried out diligently.

Making plans

Local Plan policies could still be promoted on the basis of evidence base and local circumstances which justify the LPA’s proposed thresholds. That will run the gauntlet at Examination in Public given the wider powers to intervene in the Plan-making process now available under the Housing and Planning Act 2016.

The reasoning given for the small sites policy in Government’s evidence (extracted at paragraph 53 of the judgment) provides clear scope for authorities to use evidence to show that their affordable housing policy thresholds are in line with the intended policy objective as long as requirements are:

  • viable, and
  • that contributions will be required at a time when they could not sensibly stall schemes (i.e. pre-occupation).

If local policies are supported by evidence that shows they would deliver Government’s stated intended outcome then they should survive Examination.