PINS gives 52 Pages of Pre-application Advice – and Still get it Wrong

I previously blogged on here that Gladmans ‘needed their heads examined’ for using the special measures procedure to apply for a site with an up to date local plan on BMV agricultural land where they were subsequently refised with no second chance.

Martyn Twigg of Gladmans provided me with the 52 pages of pre-app advice that PINS gave which explains why they submitted.

52 Pages! and they still got it wrong.  A warning if ever there was one that you should always be cautious about pre-app advice and there is no substitute for local expertise and knowledge.

The key section (I have uploaded it on dropbox) is  section 3.2.  Despite having an up to date local plan and that plan being used as the basis for calculating the backlog at two appeals the advice is that it should revisit whether to use the residual approach in favor of the Sedgefield approach on the basis of the recent NPPG.  What bad advice.

Firstly you only ever vary from an residual approach when a plan is out of date and there is a backlog.  A recently adopted plan is unlikely to have a backlog if you calculate the trajectory on the basis on which it was adopted.  So the guidance simply does not come into play.

Secondly the oddly undated pre-app note does not take into account the case of Bloor Homes V SoS issued on March 2014 relating to a nearby district in the same circumstance (possibly after the pre-app note was issued) clarifying that it is perfectly acceptable for an inspector to adopt a residual approach as in the two previous Blaby appeals.

What Gladmans should have done was to withdraw the application after the Bloor Homes decision had come in.  If this was a S78 appeal Balby could legitimately asked for a partial award of costs if they carried on.

Which illustrates again how inefficient the special measures regime is. Everyone time is wasted by an applicant submitting an application which on the basis of recent appeals, caselaw and a recently adopted plan stood no realistic chance of success.  In the non-special measures system there is an in built incentive in the system against such timewasting. Not so in the special measures system.

 

3 thoughts on “PINS gives 52 Pages of Pre-application Advice – and Still get it Wrong

  1. The comment that you should only vary from a residual approach when a Plan is out of date is a puzzling one and sits uncomfortably against the implications of paragraph 49 of the NPPF. Quite plainly, the NPPF requires a decision maker to consider whether there is or is not a 5 year supply to then determine under paragraph 49 whether a Plan is out of date and this requires there to be a calculation. This point was accepted in the Bloor Homes judgement by all parties (paragraph 103). Nothing in that judgement gave support to a preference for either the Liverpool or the Sedgefield methods of dealing with a backlog of supply as that is the remit of the decision maker. It follows that in a Section 78 appeal it is wholly appropriate for the calculation of 5 year supply to be assessed and calculated to determine whether Paragraph 49 applies or not if one party is questioning the robustness of the LPA’s assessment. Whilst a recently adopted Local Plan which contains a trajectory for housing supply is an important material planning consideration, its mere existence cannot possibly be taken as read as circumstances may have changed and recent evidence may be available that assumptions on housing trajectory may no longer be as robust as they were when the Plan was found to be sound. This is especially the case when the Plan’s trajectory contains large strategic allocations which are notoriously difficult to predict in respect of lead in times and delivery rates. The Bloor Homes judgement succeeded on the point that the Inspector did not consider the evidence that a 10% discount should be applied to allow for slippage on large strategic sites. The old planning doctrine of Plan Monitor and Manage is something that shouldn’t be forgotten as a Plan does not become set in stone the minute it is adopted and the policies and evidence that underpinned them needs to be continually monitored. That is why it is perfectly correct for a decision maker to examine housing land policies and trajectories to determine whether the assumptions are still valid and where the evidence suggests otherwise to come to a different conclusion. That could well mean preferring Sedgefield to Liverpool if it is clear the trajectory underpinning housing policy is not delivering the required amount of housing. To not revisit the assumptions would be entirely wrong and therefore it was entirely legitimate for PINS to seek to do so in issuing its pre-application advice. Whether or not the conclusions it reached in its pre-application advice are robust or otherwise is not the point, the fact is it was an entirely legitimate procedure. What was not legitimate in my opinion, was having reached the conclusions it did in issuing the pre-application advice, the same decision making body should not have then changed the assumptions underpinning the conclusions.

  2. If by “it” you mean residual or Liverpool then yes but that wasn’t the point of my comment. If you read my comment fully you’d have seen that I was taking issue with your statement that PINS pre-application advice shouldn’t have used Sedgefield because there was a recently adopted LOcal Plan that had adopted the Liverpool approach to backlog. You didn’t substantiate why you thought PINS couldn’t adopt a different approach to backlog and the fact is that it was entirely open for them to do so if they considered that the evidence suggested that it should be reviewed. As Lindblom said, it is entirely a matter for the decision maker to adopt which method he or she chooses and the release of the NPPG is a material planning consideration that favours Sedgefield. Your “analysis” ignores the importance of considering new evidence and whether or not housing trajector, even one recently adopted, is being met. There are many examples where Local Plans have adopted housing trajectories to vary housing land supply which is perfectly in order as long as the trajectories are deliverable and more importantly being delivered. However where the level of completions falls behind the trajectory then it is entirely proper to revisit the assumptions. Your comment certainly didn’t say that and indeed suggested the opposite. So to answer your response – no it wasn’t what you said at all if you re-read your comment and my reply.

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