Why so Many SoS Housing Decisions are Being Refused – The 10 Covert Changes to National Planning Policy

Eric Pickles has made the decision to covertly alter national planning policy in the run up to the general election. He must have been given te instruction to ‘take the heat out’ of the greenfield issue in the run up to the election.  Hence the dramatic shift from ‘build what you like where you like’ to a position where an approval of a housing, windfarm or Gypsy site on a recovered or called in appeal is as rare as hens teeth.

Dating thus change is difficult as it has been slipped out in a number of statements, guidance and other forms. Every week now seems to have a change to national policy.  It seems to date sometime from late Sept and Early November 2014 in full force, with a discernible shift seen from March 2014 when NPPG was issued.  But make no mistake the tactic is to subvert NPPF para 14 and be able to refuse as many housing schemes as possible, and to covertly signal to conservative marginal seats that LPAs should follow the signal.  If you doubt this just look at the statistics on SoS decisions before and after this period.  There are enough now to detect a statistically meaningful pattern.  This kind of shift only occurs after an epochal shift in national planning policy.  Indeed the shift evolves as the SoS finds ever more imaginative reasons to refuse schemes.  In one appeal in Cheshire East released this week a scheme was refused contrary to an inspectors advice because it might one day be designated as Green Belt (although there are no firm plans) I kid  you not.

What are the components of this change.  Lets add them up.  I count 10 we will probably discover some more before the election as ministers make them up as they go along.

  1. The addition of the ‘Not at Any Cost’ doctrine to the Interpretation of the NPPF  – see here .  This is wording not in the NPPF.  It is new. Referred to in parliament several times over recent months and formally in the DCLG select response on the 27/2/2015
  2. The Application of a Stronger Test for the Setting of Heritage Assets – this shift is older results from the NPPF being found not in compliance with the wording of the 1990 LB&CA Act.  This has been particularly used in Windfarm cases and occasionally elsewhere.  It has been applied rigidly within the SoS allowed discretion of any not unreasonable is permissible.
  3. The Strong Application of the Prematurity Doctrine to Neighbourhood Plans – applied in several stages from amending the call in criteria to the strengthened prematurity guidance in NPPG in March 2014.  The application of this has had a particularly dramatic effect as it allows LPAs to apply the now well known Neighborhood Plan Bait and Switch to effectively reverse the para. 14 presumption.  In private meetings with Tory Mps and Council leaders Pickles has been expressly urging its use.
  4. The Weakening of the OAN ‘met in full’ requirement – set down in NPPG amendment Oct 16th.  The doctrine that the SHMA was just the ‘starting point’ was the pre NPPF position.  But the excessively short NPPF itself did not make that clear, so now added to guidance.
  5. The Change in Approach over the Green Belt ‘Very Special Circumstances’ test in relation to OAN  (Oobjectively Assessed Need) Just after the NPPF was issued there were a few called in cases, such as at Lytham St Annes, where the VSC test was deemed to be met because of severe  shortage of 5 year supply.  Not any more after a ministerial statement in July 2013.   This was underlined by the Court of Appeal decision in the Hunstan Case that it is common in Green Belt areas to not meet need and so this could not be ‘very special’.   An odd logic in my view as the reason why we have different ‘very special’ and ‘exceptional circumstances’ test is that very special occurs commonly, an example being extensions to meet the needs of disabled persons in the Green Belt.  Very special but common.  The change was introduced to allow ministers to refuse more Travellers cases in the Green Belt but to avoid being discriminatory had to apply to all housing.  As a result another very special but common case travellers its in the Green Belt, are locked out.
  6. The Reigate Doctrine – You Cant be Told to Review Green Belts – Dates back to March 2014 and the subsequently confirmed in NPPG.  Covered extensively on this blog.
  7. The Treatment of Green Belt as a ‘constraint’ for Not Meeting OAN in Full – Confirmed in NPPG.  Already taken up in Guildford and Mole Valley to slow down plan reviews till after the election.  Yet to be fully tested if LPAs cant confirm that land meets Green Belt Purposes and they say other LPAs should meet overspill and they can’t agree under the Duty to Cooperate, they may have a torrid time at EiP.  A simple holding and delaying tactic to avoid bad headlines pre-election.
  8. The Increased Weight Given to Valued Landscapes – A subtle shift discernible in SoS decisions.  The NPPF does not define what is a ‘valued landscape’  – an unreported case in Stroud has seen Justice Ousley declare that popularity alone is not sufficient to meet he test.  This needs to be seen against the increasingly complex caselaw about whether housing supply policies are out of date.  I wont try to summarise that caselaw here however the courts, in some cases as in the new Cheshire East v Secretary of State for Communities and Local Government and Richborough Estates specific to a local plan have declared policies on the open countryside to be landscape protection policies and not housing supply policies in-terms of the NPPF. The evidence is that the SoS is using this caselaw to  apply a general protection of the open countryside policy even where there is no 5 year supply.  Indeed it took the SoS only a few days to apply the Cheshire East case to the Church Lane Crew case.
  9. Giving Increased Weight to the Environmental and Social Components of Sustainable Development – brand new DCLG Select Committee repose, whilst dressed up this was in the NPPF all along, it wasn’t.
  10. Introducing the ‘very clear’ test that permitted sites be included in the 5 year supply – brand new

Have you spotted any more? (update now an 11th of course on Starter Homes)

These 10 changes give a suite of options for ministers to refuse schemes and there are few cases where Lewis and Pickles has not found one to use.

Covertly and gradually introduced over the last few months – possibly as Brandon Lewis read himself into his new job and as cases came before his desk.  There was also I think a political instruction from Osborne and Cameron to ‘take the heat off’ .  I did speculate for a time that Pickles was covertly trying to undermine Osborne was his attention was elsewhere.  I don’t think this is plausible for two reasons.  Firstly the shifts are joined up across government, witness Gideon’s ‘urban planning revolution’ speech and him referring to planning at every autumn statement and March Budget. Secondly the whips must have been impressing on the leadership the near state of rebellion on the back benches.  At one point there was a Westminster Hall debate every other week.  Now things have calmed down a little, the message must have come down from the top that action has been taken.

Dont get me wrong many of these changes should have been in the NPPF from the outset as they correct obvious flaws.  But a major almost 180- degree change in policy has been introduced without a single advertise dchange to the NPPF and with no consultation.  What happened to the simplicity the NPPF was supposed to bring if you now have to read several lever arch files of precedents and one off statements to understand how it is being applied.  It is a constant ever changing mess.  No wonder local plans take so long.

Partly also it is a change in culture.  Clarke and Boles were quite prepared to take the lofty position of setting NPPF policy and letting cases take there course come what may.  A former cllr like Brandon Lewis does not think like that, he cannot result the ability to politically shape events by calling in more and deciding more whatever policy says, and then shifting policy ad hoc to back the decision. As a result the NPPF is an undermined and devalued document.  The main premise it was founded on, the John Rhodes/John Howell stick, if you don’t produce a local plan you get beaten, is now longer applied.  Without that the loss of land allocations from region plans would not be compensated for by scattered development around villages. Ministers have given up on local plans and now apply the stick in a padded glove.  So it is now likely without the Rhodes/Howell stick planning approvals for housing will fall and fall dramatically, unless there is a post election reversal.

Local Planning Authorities will cotton on and refuse more and more without waiting for appeals.  The recent Crane Case that the decision maker can give any weight to an adopted plan that is reasonable means, as a side effect, that LPAs cannot be found unreasonable for refusing a scheme against a local plan when there isn’t a 5 year supply, hence no costs.  Hence the big stick of the fear of costs, applied so many times by heads of planning no longer applies.

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