Must Read Hinkley and Bosworth Appeal – On Calculating 5 Year Supply and Countryside Protection Issues

Here – thanks to John Price.

Land East of Wolvey Road, Three Pots, Burbage, Leicestershire, LE10 2JJ

The most detailed coverage of Liverpool v Sedgefield yet, especially as the core strategy used Liverpool.  The inspector backed Sedgefield.

Also neatly summarizes the caselaw and appeals on whether general countryside protection policies are to be considered ‘housing restriction’ policies and therefore out of date when considered against the NPPF.

Policy NE5 deals with development in the Countryside. It seeks to protect the countryside “for its own sake” and sets criteria that any development in the countryside must meet to be acceptable. The Council argue this is not a housing supply policy, but a countryside policy and so is not affected by paragraph 49 of the Framework. I was referred to two high court decisions and an appeal decision. In the Cotswold court case [Cotswold District Council v SSCLG and others [2013] EWHC 3719 (Admin)] policy 19 of their Local Planwas at issue. The policy sought to restrict development outside of development boundaries and was essentially a rural protection policy. The court held that policy 19 was a housing land supply policy as it “restricts development, including housing development” (paragraph 72). This is a short but unequivocal statement. In Davis and Jelson [Davis and Jelson v SSCLG & North West Leicestershire District Council [2013] EWHC 3058 (Admin)] the policy was E20 which was a green wedge policy designed to restrict development within a defined area between two settlements in a manner reminiscent of Green Belt policy. The Court held at paragraph 47 that although this clearly had the effect of restricting housing development it was not a policy concerned with the supply
of housing itself. The judge underlined the word “supply” whenever she used it. As far as I am aware neither case referred to the other.

In the Alsager appeal {R0660/A/13/2195201, Sandbach Rd North, Alsager) the Inspector adopted an approach similar to Davis & Jelson although again it does not appear he had seen either court case. He found policy PS4 which dealt with settlement zone lines was also not a housing land supply policy. Although it defined lines around settlements outside of which it is presumed development would be restricted, it did not allocate housing land. Although it took account of housing land allocations when being drawn up its primary purpose was the delineation of town and countryside.

It is perhaps not surprising that three very recent decisions have reached different conclusions as the effect of paragraph 49 is still being worked through. In this case NE5 is a general policy that seeks to control development in the countryside. One affect of it is that it limits housing development to that which meets the relevant criteria, tests that in effect very little housing would pass. On a strict reading of Cotswold it is therefore a housing policy. However, E20 in Davis & Jelson also had the effect of restricting housing and was not considered a ‘supply’ policy. The wording of paragraph 49 is that “relevant policies for the supply of housing should not be considered up todate…”.We are told that each word of the Framework was carefully considered and I can only assume therefore that this deliberately restricts itself to “policies for the supply of housing”. It does not mention general policies that have as a
side-effect a limitation on housing. The primary purpose of NE5 is the protection of the countryside not housing land supply. The Council can at any time allocate sites for housing in the countryside for example as part of the SADMP and such allocations would override this policy. It does not seem to me therefore to be a policy that concerns itself with housing land supply except indirectly. As such it is not affected by paragraph 49.

I am supported in this conclusion by the appellants own argument that if NE5 was considered a housing land supply policy so could any other policy that sought to control the use of land for purposes other than housing, including safeguarding land for commercial or industrial use, which would as a byproduct
prevent housing development on that land. In my view a Council’s Green Belt policies would also have to be considered out of date as these severely restrict housing development. I do not think this was the intention of the Framework, hence the careful wording of paragraph 49.

Consequently, while the Council’s housing supply policies are out of date by virtue of paragraph 49, policy NE5 is not. However, it does seek to protect the countryside for its own sake, a phrase not found in the Framework. Paragraph 115 gives great weight to protecting land subect to a national designation such as a National Park and paragraph 109 seeks to protect and enhance valued landscapes; whilst recognising the “intrinsic character and beauty of the countryside” is one of the core planning principles in paragraph 17. But none of these refer to a blanket protection of the countryside regardless of its landscape merits. In that sense the policy is not in conformity with the Framework and the weight ascribed to it is accordingly reduced…

NE5 is stricter as it requires the countryside to be protected for its own sake,but this element of the policy is not in accord with the Framework. Inserting houses into the site would obviously detract in some way from the character of the site itself, but for the reasons given above I do not consider it would harm the wider landscape, and so the proposal would be in general conformity with NE5.

This is slightly angle on heads of a pin as Para 14 of the NPPF refers to relevent policies overall not simply on ‘supply of housing’.  Para 49 refers to the specific case of when policies on the supply of housing are out of date.  It does not mean that if specifically these policies are out of date other policies are not out of date.  A plan has to be read as a whole and if the housing pipeline is out of date then so will zoning.  The poor drafting of para 14 does not help as it does not refer to the case (as its predecessors did) of where policies pull in different directions.  The NPPF is absent and silent and what happens in that case.

Although the inspector’s reasoning is suspect the decision is helpful as it implies that policies on protecting the countryside as countryside are not automatically to be confined to the scrapheap.

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