LOCAL PLAN UPDATES
(1) East Cambridgeshire
Local Plan Update – February 2020
Key issue: Changes proposed by the Inspector would result in a very different plan from the one submitted by the council.
In February 2019, the council withdrew its local plan from examination due to the fact that the Modifications being proposed by the Inspector would fundamentally change the plan from the one that the council submitted. Key issues were around the significant increase in housing numbers being and the changes to the spatial strategy that were being proposed by the Inspector. The report to council stated [Para 3.21, 21 Feb 2019]:
“Should the Council accept them all [the Modifications], it would mean the Plan would no longer be a Plan prepared by the Council, supporting corporate objectives of the Council, for residents of the district. It would be one which is perhaps better described as an Inspector-led Plan. In short, with the modifications, the Plan would become largely unrecognisable from the Plan submitted for examination.”
Key Issue: Duty to Cooperate
The council submitted its local plan for examination in April 2019. This includes a housing target of 13,960 (689 per annum), approximately 75% of the Government’s Standard Methodology for housing needs. About 25% of the total proposed would be delivered on 4 Green Belt sites. The Council had initially proposed releasing 12 GB sites but dropped 8 of these before the final plan was submitted. In November 2019 (post Examination Hearings) the Planning Inspector advised the council that she had significant reservations about legal compliance of the plan (Duty to Cooperate) as well as some concerns about the soundness of the plan. She therefore recommended that the plan is withdrawn as it did not comply with the legal requirements of the Duty to Cooperate Failure.
The Duty to Cooperate requires councils to work with neighbouring authorities to address any shortfalls in meeting housing needs. It requires Local Planning Authorities (LPAs) t0 demonstrate that they have cooperated positively, constructively and on an ongoing basis to
solve any issues. If a council fails the Duty, no changes (Modifications) to the plan at the examination stage can be made to fix it retrospectively, so it must be withdrawn – the council effectively has to start the plan-making process again. In this case, the Inspector concluded that, whilst there was clearly a lot of joint work going on with neighbouring councils, the council had not formally asked neighbours to help meet their needs. If they had, and their neighbours had said they could not help, then the Inspector could have reasonably concluded that the Council had met their legal duty and then moved on to address any soundness issues, including overall housing and spatial strategy.
The Inspector did not give any further details about her soundness concerns because of the ultimate legal compliance failure. The council has contested this conclusion and has recently written (January 2020) to the Secretary of State to challenge the Inspector’s conclusions.
https://www.sevenoaks.gov.uk/info/20069131/local_plan_examination https://www.sevenoaks.gov.uk/downloads/file/2870/ed44_inspectors_letter_to_sdc http://www.legislation.gov.uk/ukpga/2004/5/section/33A
(3) South Oxfordshire
Key Issue: Whether the Secretary of State should intervene to ensure progression of the local plan submitted for examination against the Council’s wishes
The draft local plan was submitted for examination in March 2019 but, following a change in leadership (from Conservative to Lib Dem) in May 2019, the new administration agreed to withdraw the plan and prepare a new plan. The Secretary of State then issued a holding direction to prevent this whilst he considered whether or not to use his powers of intervention, which included whether he would ask Oxfordshire County Council to take on the LPA role.
Intervention in local planning has been threatened by successive Secretary of States since 2015, starting with Brandon Lewis who subsequently added new powers of intervention in the 2016 Housing and Planning Act These allow a Sec of State to intervene in a number of ways, including taking responsibility for the plan away from the LPA. Although this was used as the basis of a further round of threats to intervene by Sajid Javid against 15 other LPAs in November 2017, no meaningful action against any LPAs has been taken so far.
Unlike other places, the stakes are considered to be very high if the plan does not move forward as planned. South Oxfordshire is set to benefit significantly from an Oxfordshire Housing and Growth Deal worth £215m and a successful Housing and Infrastructure Fund bid worth £218m but both are dependent on the county delivering the growth promised in the Deal, which would see the area deliver over 30% than its housing needs (as set out in the Standard Methodology). They are also part of a Joint Strategic Plan being prepared by all 5 Oxfordshire Authorities, also agreed as part of the Deal, which allows the councils certain ‘freedoms and flexibilities’ including a bespoke housing delivery test and a 3 year housing land availability test (instead of a 5 year test) whilst the joint plan is being prepared. The Leader of the Council responded to the Sec of State on the 17th January.
(4) St Albans
Key Issue: Duty to Cooperate and Green Belt methodology
The Council submitted its plan for examination in July 2019 and hearings started in January 2020. However, the Inspectors have now cancelled further hearings due to take place because of concerns about legal compliance (the Duty to Cooperate), and soundness issues
related to the spatial strategy and Green Belt. The draft plan proposes meeting needs of 913
dwellings per annum which includes using 525 hectares of Green Belt land. The Council had
previously failed the Duty to Cooperate and was also subject to the initial threat of
intervention from the Government along with 14 other councils in November 2017 (see
reference in South Oxfordshire case above). Preparation of a Joint Strategic Plan was initiated
in January 2019 by the South West Herts Authorities (including St Albans) to help address the
strategic planning challenges the area faces, including housing delivery.
The Inspectors had already set out some initial concerns around the Council’s decision-making
|process with regards to releasing Green Belt, both in terms of making the initial case for|
|exceptional circumstances (see the Legal case against Guildford BC above) and the choices|
|then that were made on specific sites/ approach to GB releases. The methodology for|
|decisions on what GB sites should be used was considered flawed mainly because the|
preferred sites do not fit within the spatial strategy for the plan. This was also a key factor in the recent failure of the West of England Joint Spatial Plan.
Key Issue: Duty to Cooperate
In December 2019 the LP Inspector wrote to the council recommending withdrawal of the plan due to the legal failure of the Duty to Cooperate (see Sevenoaks LP above). The key matters were the lack of constructive engagement with neighbouring authorities and Natural England (over how to deal with the impact of nitrogen emissions as a result of increased housing – and therefore, car traffic – on the Ashdown Forest Special Area of Conservation) and in respect of the issue of unmet housing need in Eastbourne.
The specific issue was how the Council planned to measure and mitigate against the impact of growth on the SAC and the difference in approach between the Council and Natural England. For more specific details of the background, refer to the legal case in 2017- link below.
https://www.landmarkchambers.co.uk/resources/cases/wealden-district-council-v- secretary-of-state-for-communities-and-local-government-lewes-district-council-and-south- downs-national-park-authority-2017-ewhc-351-admin/
(6) Welwyn Hatfield
Key issue: Housing target and Green Belt
The council submitted its plan for examination in May 2017 with a housing need of approximately 14,000 but a planned local plan target of 12,000, which included about 6,000 within the Green Belt. Since then the Council has been asked by the Inspector to explore whether there were other GB sites that could be included, given that the council had already concluded that there are exceptional circumstances. The examination is still in progress (2 years and counting!) and the council has carried out several further reviews of GB and further ‘calls for sites’ to see if the shortfall could be reduced.
Key Issue: Use of an alternative assessment of housing need (rather than the Government’s Standard Methodology)
The Council stated its intention to challenge the Government’s standard methodology last year, following a survey of its residents, with 9 out of 10 residents saying the standard methodology figure was too high. The Council has now published its draft plan (January 2020) with a proposed housing target based on the council’s own assessment of need which has a lower starting point than the government’s methodology, and a stated intention of reducing this further if they can.
LPAs are encouraged to use the Government’s methodology for assessing housing need and developing a local plan target. It is based on the assumption that supply of housing will impact on relative affordability of housing and is therefore (generally) much higher in areas with low affordability (house-prices to income ratio). Current government guidance makes it clear that the assessment of need is a starting point (policy-off) for developing a robust housing target in a local plan (policy-on) and it therefore will not necessarily equate to the final target set out in the plan. Use of the Government’s methodology for assessing housing need is not mandatory and an alternative assessment can be used (as the starting point) where there is considered to be an exceptional case for deviating from this. The National Planning Policy Guidance (NPPG) states:
Is the use of the standard method for strategic policy making purposes mandatory?
No, if it is felt that circumstances warrant an alternative approach but authorities can expect this to be scrutinised more closely at examination. There is an expectation that the standard method will be used and that any other method will be used only in exceptional circumstances.
Paragraph: 003 Reference ID: 2a-003-20190220
Getting the right starting point for developing a robust target is important as any potential shortfall should be dealt with through strategic planning mechanisms and the Duty to Cooperate. For example, if a council’s own methodology has a lower starting point (policy off) and the full needs cannot be accommodated within the LPA area, the shortfall betweenassessment of need and provision (the ‘to be found’) will be less than if the Standard Methodology is used.
RELEVANT LEGAL CHALLENGES
Compton Parish Council v Guildford Borough Council Legal Challenge (December 2019)
Key conclusions from judgement:
- It is for the local planning authority to define what the ‘exceptional circumstances’ are locally for releasing Green Belt through a local plan review – there is no national definition of the policy concept of ‘exceptional circumstances’ – a planning judgment should be made in all the circumstances of any particular case, which requires a careful balancing act (cost – benefit analysis).
- ‘Exceptional circumstances’ for releasing Green Belt through a local plan is a less demanding test than the development control test (very special circumstances) for permitting inappropriate development in the Green Belt – which makes sense as we are supposed to have a ‘plan-led’ system.Calverton Parish Council v Nottingham City Council and Others (EWHC 1078, May 2015)https://www.bailii.org/ew/cases/EWHC/Admin/2015/1078.htmlAlthough this challenge is now a few years old it is still being used to inform local plans. Calverton PC challenged 3 councils on their local plans (the councils were producing 3 aligned strategies to manage the growth of Nottingham City which required a review of the Green Belt boundary). The Judge dismissed the challenge having concluded that the councils had
- the acuteness/intensity of the objectively-assessed need;
- the inherent constraints on supply/availability of land;
- the consequent difficulties in securing sustainable development without impinging on thegreen belt;
- any resulting harm caused to the GB; and
- the degree to which harm could be ameliorated.However, this needs to be seen in light of the later judgement (above) which concluded that exceptional circumstances will be different in different places and the relevant matters which inform the decision are for the LPA to decide.
OTHER USEFUL INFORMATION
- The role of a Planning Inspector
- https://www.gov.uk/government/publications/examining-local-plans-procedural-practiceAn Inspector’s role is to:- focus only on fundamental matters of concern;
– work closely with a local council, aiming to reach a consensus on whatmodifications are necessary to make a Plan ‘sound’
– undertake timely and efficient examinations; and
– avoid unnecessary detailed matters or attempts to ‘improve’ the Plan.The contract is between an individual Inspector and the Local Planning Authority – it is not between the ‘Planning Inspectorate’ in general therefore there is a relatively amount of flexibility afforded to how they operate and how they interpret and apply national policy, as well as what they determine as issues of ‘soundness’ or of legal compliance.Recent advise to the Planning Inspectorate from the Secretary of State (https://www.gov.uk/government/publications/local-plan-examinations-letter-to-the-chief- executive-of-the-planning-inspectorate ) makes it clear that there is an expectation that Inspectors will take a pragmatic approach to get plans over the line:“…on the substance of plan examinations, I wanted to stress to inspectors – who are doing a challenging job – the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority and consistent in how they deal with different authorities. We support and expect Inspectors to work with LPAs to achieve a sound plan, including by recommending constructive main modifications in line with national policy. In this regard, I would reiterate the views set out by the Rt Hon Greg Clark MP in his 2015 letter, which I attach, on the need to work pragmatically with councils towards achieving a sound plan.
An Inspector cannot force a council to release GB where the LPA has not made the case for ‘exceptional circumstances’. This was confirmed through correspondence in 2014 between the Planning Inspectorate and the Sec of State with regards to the Reigate and Banstead LP. The letter from the Sec of State made it clear that, whilst it has always been the case that LPAs can adjust the boundary of GB through their local plan process
“It must however always
be transparently clear that it is the local authority itself which has chosen that path” –
Summary of what goes into the development of a local plan