Defending housing appeals under the NPPF has been famously compared to betting on a three legged donkey by a councillor as the first few months of oits introduction saw an almost 100% success rate on large housing appeals.
But in recent weeks there have been a number of successful defenses, and it is useful to draw some lessons. After all the way to make a real killing at the races is to bet on a three legged donkey and win at long odds.
Residents in Seaton have won an appeal on a Green Wedge site where officers at East Devon had recommended approval. There have also been successful appeals on issues where the NPPF gives specific exceptions to the general presumption in favour of sustainable development.
So here are my rules of thumb of cases where you may be likely to win an appeal.
1) Is it a case where the NPPF gives absolute protection? Such as protected species. Then it is a knockout not only does the presumption nbot apply but the weiging and balencing exercise allows the economic and other benefits of the scheme only to be considered in exceptional cases.
2) Is it a case where the presumption in favour does not apply? The obvious example is Green Belt, there is still a weighing and balancing exercise but there will either be a presumption against (as in Green Belt) or no presumption but strict tests (as for building on flood planes).
3) Is it a case where the NPPF gives relative protection? This includes issues such as ancient woodland, this is no absolute protection, as benefits can exceptionally overide harm but more appeals on this issue have been lost than won. The other obvious case is where the traffic impact of the development causes ‘serious harm’ where the SoS has refused two cases in the last year.
4) Is an up to date local plan submitted with a 5 year+ supply? If so as at Seaton the inspector may judge any current undersupply as temporary as the market will quiclkly (bit not instantly) adjust to any increase in hhousing land through increase consents.
5) Does the scheme cause visual or other harm? The NPPF does not protect bog standard fields but does protect ‘valued landscapes’ if these are protected by policy such as through gaps wedges etc policy then if you can demonstrate 4) above then the odds have swing in your favour.
6) Is a draft neighbourhood plan/pr allocation plan in line with an emerging local plan propose suggesting alternative superior sites? If the local plan is short on housing numbers then you will fall foul of the Tattenhall problem, bit if it doesn’t then the odds have again swung in your favour band you can show you arnt being Nimbey you are being positive loocalists.