The Tewksbury Case – Localism Act is No Big Deal #NPPF

The Ballilaw link 

On prematurity

Even if full weight was given to the emerging JCS, in the inspector’s view the JCS proposals were not capable of meeting the identified housing need, and therefore could not rebut the presumption in favour of development as a result of the absence of a five year housing land supply. However, he went on to consider the effect of the Localism Act 2011 on the approach to be adopted, concluding that there was nothing in the Act to alter the long established requirement for a five year housing land supply and recognising that “the tension in policy between the desire for decisions to be taken locally and the requirement for a 5 year HLS remains unaltered”.

    On the basis of this analysis the inspector’s conclusions on prematurity were as follows. First, applying paragraph 18 of PS:GP, the JCS was only just at the consultation stage, without an agreed option to take it forward, and in such circumstances refusal on the ground of prematurity would only seldom be justified. Second, it was very unlikely on any basis that Tewkesbury’s proposed trajectory for housing development could deliver a five year housing land supply, whichever figures were used. Third, allowing the appeals would not predetermine future decisions on the scale, location or timing for any of the other proposed development sites which would be required under the JCS. Accordingly, Tewkesbury’s evidence failed the test indicated in paragraph 19 of PS:GP of showing clearly how allowing the appeal would prejudice the outcome of the JCS process. Thus

the inspector cannot be said to have disregarded the JCS. Rather he engaged with it but concluded that it did not bear the weight which Tewkesbury sought to put upon it..

    In my judgment, subject to the issue as to the effect of the Localism Act and the policy which it embodies, the inspector’s report and the Secretary of State’s decision accepting and adopting that report were the result of an entirely unexceptional application of the legal and policy principles set out above. In particular, the inspector and the Secretary of State were entitled to conclude that (1) the existing pre-PCPA 2004 development plan was outdated and therefore of very little weight; (2) the need for a five year housing supply was a material (and in fact the most important material) consideration; (3) Tewkesbury was unable to demonstrate such a supply in this case; (4) accordingly a presumption in favour of granting permission applied; (5) the emerging JCS was of little weight because it was at a very early stage; (6) in any event the proposals in the JCS were incapable of meeting the demand for housing during the next five years; (7) granting permission would not prejudice the JCS process; (8) there was therefore no basis to refuse permission on the ground of prematurity or otherwise because of the JCS; and (9) overall, the balance came down in favour of granting permission. Each of these conclusions was the result of applying well established principles and policies to the evidence before the inspector and was a legitimate exercise of planning judgment.

Mr Leigh submits that paragraph 14.8 of the inspector’s report (set out at [34] above) was wrong in law because the inspector treated the absence of a five year housing land supply as determinative in favour of the grant of permission, regardless of all other considerations. I would agree that if he had done so, that would have been an error of law, as paragraph 71 of PPS 3 (set out at [16] above) does not go that far. Nor do paragraphs 47 to 49 of the NPPF (see [18] above). However, as already explained, that is manifestly not what the inspector did. He was entitled to regard the lack of a five year housing supply as “the most important material consideration”, which was a matter of weight and therefore a decision for his judgment, but he did not treat it as a trump card overriding and rendering irrelevant everything else. I would not accept that (as Mr Leigh put it) once the lack of a five year housing supply had been identified, the result was a foregone conclusion.

The Localism Act – A Fundamental CHange?

I come now to the question whether the Localism Act 2011 has brought about a fundamental change in the approach to planning applications so as to vitiate the conclusions reached by the Secretary of State. Mr Leigh submits that it has, so that much greater weight must now be given to the views of the local planning authority. He identifies the change, not so much in the words of the Act (I invited him to draw to my attention the statutory provisions which had the effect contended for, but he made clear that this was not how he put his case) but in broad statements made by government ministers and others as to what the Act was intended to do, eliminating “top down” planning and transferring power to local communities.

  • However, the core principle in paragraph 17 must be read in the context of the NPPF as a whole. That context includes (1) the presumption in favour of sustainable development in paragraph 14; (2) the requirement to boost significantly the supply of housing in paragraph 47; (3) the need, also in paragraph 47, for a five-year supply of housing land and the corresponding injunction in paragraph 49 that policies for the supply of housing should not be considered up to date if a five-year supply cannot be demonstrated; (4) the one year transitional period for development plans adopted in accordance with the PCPA 2004 by paragraph 214; and (5) the confirmation of the principle of prematurity contained in paragraph 216….
  • In my judgment these matters are capable of being read together as a coherent whole. They demonstrate that, for the future, development plans prepared by local planning authorities in accordance with the national policy principles set out in the NPPF, including the provision of a five year housing land supply, will represent the starting point for consideration of planning applications, and that it may well be difficult to obtain permission for developments which are not in accordance with such plans. However, they do not suggest that greater weight should be accorded to the views of local authorities who do not have such a development plan (or during the one year transitional period, a development plan produced in accordance with the PCPA 2004) over and above whatever weight would be appropriate pursuant to the long established prematurity principle. Nor do they cast any doubt on the fact that, pending the adoption of local development plans, individual planning applications will continue to be dealt with, where appropriate by the Secretary of State, applying existing principles…
  • I consider, therefore, that the Secretary of State was correct to say, in paragraph 32 of the decision letter set out at [48] above, not only that there have been changes to the planning system as a result of the Localism Act which will give local communities more say over the scale, location and timing of developments in their areas than was previously the case, but also that this greater say over such matters will depend upon the expeditious preparation of local plans which make provision (including in particular a five year supply of housing land) for the future needs of those areas. The Secretary of State’s decision in this case is in accordance with and not in contradiction to that approach. I see, therefore, no valid basis on which it can be concluded that the Secretary of State’s decision is unlawful as being contrary to his own policy, introduced as a result of or embodied in the Localism Act
  • his essential case is (and can be no more than) that in some (undefined) circumstances the views of the local authority (albeit not yet embodied in an adopted local plan) are entitled to greater weight than other material considerations such as the need for a five-year housing supply (or, in effect, that the prematurity principle should now apply in circumstances where previously it would not have done). But quite apart from the fact that no such conclusion can be drawn from the generalised policy statements on which he relies, such a case would amount, apparently for the first time in English planning law, to laying down as a rule of law a requirement as to the weight to be given to the views of the local authority rather than leaving such matters to the planning judgement of the Secretary of State or his inspector. This would contradict what Lord Hoffmann described as a fundamental principle of planning law (see [50] above). The Localism Act contains nothing which could be regarded as enacting such a radical change and in my judgment it is inconceivable that any such change was intended to be brought about by the policy statements which accompanied the Act.
  • .

The role of Memorandums of Understanding in the Duty to Cooperate -Tamworth #NPPF

Further interesting development onwards from Coventry and Rushcliffe on the role of Memorandums of Development and the Duty to Cooperate at Tamworth.

In the Inspectors Letter the Inspector included in the notes of what changes were necessary to make the plan sound

  • to align the two separate Anker Valley policy housing allocations in Tamworth Borough and Lichfield District on either side of the B5493 Ashby Road to form a
  • comprehensively developed housing site of some 2150 homes;
  • more detail on how the 1000 homes outside the Borough to meet its housing requirements will be dealt with by Lichfield and North Warwickshire Councils;

At he exploratory meeting.

Mr Roberts said that the Council intended to remove the restrictions in the various Memorandums of Understanding (MoU) and that these 1000 homes would appear on the Housing Trajectory as part of the Borough’s housing land supply. In response to queries, such as that from John Mitchell, Mr Roberts explained that the Lichfield MoU would be amended to remove restrictions so that both it and the Plan’s Anker Valley allocation could be treated as one comprehensive site (removing the restrictions on working starting only after 2021 or once the necessary linkages were complete). The North Warwickshire MoU would be amended to remove its restrictions, which are primarily not to deliver its homes until 75% of the Anker Valley or Borough homes had been completed. 

Whether or not MoUs are needed to cover cross boundary sites  to demonstrate DTP compliance has been a hot topic of discussion.  The finding here seems to suggest (even though the plan overall failed)  that they will if they enable the site to be treated as a whole in an unrestricted manner.  Whereafter they can be treated as part of the ‘overspill’ to meet the objectively assessed need of the main tightly bounded town in NPPF terms.

The rest of the letter is worth reading.  Unintentionally funny sadly, you only allocated one site, you should have allocated 75 etc.

I have a major post in the works on how EiPs in the last six months have tackled SHMAs of the NPPF ‘Booost’ issue.

Quarter to One in Morning Decision – Could NPPF Cost a By Election?

Daily Echo

Controversial plans to build more than a thousand homes on countryside near Botley have been given the go-ahead by councillors in the early hours of this morning.

Despite pleas from dozens of protesters and warnings that the development would “tear the community apart”, councillors fromEastleigh Borough Council voted through the proposals for 1,400 new houses at Boorley Green.

Hunreds of people packed into the meeting which did not finish until 12.45 this mornig.

The row over the homes has come as politicians vie for votes in the upcoming Eastleigh by-election, triggered by the resignation of Chris Huhne.

According to planning officer Louise Cutts, there had been “enormous levels of objections” to the plans.

Protesters warned the ruling Liberal Democrats that approving the planning application would mean they would lose out on votes for their candidate, Mike Thornton, who has backed the plans.

And many of those against it spoke out last night to enthusiastic applause and standing ovations at the auditorium in Kings Community Church, Hedge End.

Botley Parish Council chairman Colin Mercer said: “This plan’s effect on Botley and its environment will be totally profound.

Chris Tapp, representing Botley Park Golfers, said: “The borough clearly needs more housing, Botley needs more housing but it doesn’t need the biggest development in the borough for 25 years.”

One resident warned at the meeting: “This development will have an impact on local residents – and also how they will vote in the upcoming by election.”

Other campaigners referred to the support that Liberal Democrat Deputy Prime Minister Nick Clegg has given to the proposals during a recent visit to Eastleigh.

Botley Parish Action Group leader Sue Grinham said: “Does Nick Clegg know this proposal will destroy a community?”

She added:: “Please, please listen and reject this application.

Ensure you provide a legacy to this borough you will be proud of in the future.”

Just two weeks ago more than 600 protestors staged a march to object to the plans.

The impact the development will have on traffic, the existing community and other infrastructure such as sewage and drainage were cited by objectors as the main reasons the new houses should not go ahead.

They also argued the application was “premature” because it had come ahead of final approval of Eastleigh Borough Council‘s Local Plan – which is where the area of land was first earmarked for homes.

The Local Plan still has to go before an Independent Planning Inspector – a process which has been delayed – and protesters say bypassing this step is “undemocratic”.

But councillors argued that the housing crisis in Eastleigh borough was so acute that the homes needed to be given the go-ahead.

Council leader Keith House said: “There is a time bomb ticking away here and the people that will pay the price of that are our children and grandchildren.”

The Liberal Democrat-run Hedge End, West End and Botley Local Area Committee also said there were more than 6,000 people on the council’s waiting list for homes – and the development would provide 420 affordable houses, along with more than 2,000 jobs.

The outline planning application was approved, with two abstentions and one objection from Councillor Rupert Kyrle.

Lyveden New Bield Windfarm JR Begins

I think we were the first to report on this very strangely worded decision letter last year


The country’s leading conservation bodies have teamed up with East Northamptonshire District Council to fight plans for a wind farm near the Elizabethan ruin of Lyveden New Bield.

West Coast Energy wants to build four 300ft turbines at Barnwell Manor, owned by the Queen’s cousin The Duke of Gloucester – although he is not a party to the case.

The Planning Inspectorate gave the go ahead for the wind farm in April last year, arguing that any harm done by the wind farm was outweighed by the benefits of green energy.

However Morag Ellis QC, representing the council, argued that the inspector’s decision was legally flawed and he had underestimated the harm that would be caused.

Ms Ellis told Mrs Justice Lang the way the inspector had worded his decision was “genuinely mysterious and wholly inadequate”.

The inspectorate had concluded the presence of the turbines “would not erode a reasonable observer’s understanding or appreciation of the significance of the designated heritage assets – and they would therefore have no harmful impact on their settings”.

Ms Ellis said: “That is an extraordinary conclusion. There are a great many top-dollar heritage assets involved here.

“This decision turns government policy on conservation on its head.”

The National Trust and English Heritage fear that if one wind farm is allowed to go ahead on the basis that the benefits of green energy outweigh the importance of heritage, then other sites will also be in danger.

Already conservationists are fighting a number of other wind farms near heritage sites around the UK, including Brent Knoll, the Jurassic Coast and Spurn Point.

Mark Bradshaw, of the National Trust, feared if they lose the case it will pave the way for councils or planning inspectors to ignore Britain’s history when considering wind farm applications

“This case is about protecting special places of the highest designation from inappropriate development. It doesn’t come much higher than this.

“It concerns balancing the preservation of our heritage – historical, architectural, cultural and religious – against the need for renewables.”

The court case is due to end on Thursday but judgement could take up to ten days to conclude.

The case comes as Ed Davey, the Climate Change Secretary, insisted he would not allow wind farms to be built that “irritate” people.

“I don’t want to have onshore wind in places that irritate people … We have looked at how communities can benefit from hosting onshore wind. I hope this can persuade people that this is not so unacceptable as people might think. If you show communities that there is something in it for them, their acceptance levels increase dramatically,” he told Prospect magazine.

Mr Davey also responded to suggestions that communities have been bribed into accepting wind turbines in their areas and that incentives offered to wind energy companies have a distorting market effect.

“Wind developers don’t get any money or subsidies if they do not generate. If they are as bad as some people say, they will go bust,” he said. “It’s almost as if people think these people are getting rich with wind turbines that are not going around. Not true.”