Suffolk Coastal Case precisely defines how to Apply Out of Date Local Plan policy when OAN shortfall

Suffolk Coastal District Council v Hopkins Homes Limited Respondent & Secretary of State for Communities and Local Government and Richborough Estates Partnership LLP v Cheshire East Borough Council & Secretary of State for Communities and Local Government [2016] EWCA Civ 168.

Yet another para 49 what does ity mean case – the third case in recent months where the Courts have had to rewrite completely to make any sense of it.

  1. Each of the advocates appearing in these appeals has drawn from the first instance case law either two or three distinctly different possible interpretations of the policy, which have been referred to in argument as the “narrow”, the “wider” or “comprehensive”, and the “intermediate” or “compromise”. In the “narrow” interpretation, the meaning given to the expression “[relevant] policies for the supply of housing” is limited to policies dealing only with the numbers and distribution of new housing, and excludes any other policies of the development plan dealing generally with the disposition or restriction of new development in the authority’s area. The “wider” or “comprehensive” interpretation includes both policies providing positively for the supply of new housing and other policies, to which Ouseley J. referred in Barwood Land (in paragraph 47 of his judgment) as “counterpart” policies whose effect is to restrain the supply by restricting housing development in certain parts of the authority’s area. In the so-called “intermediate” or “compromise” interpretation, some restrictive policies will qualify as “[relevant] policies for the supply of housing” but others will not. The latter category is said to comprise, as Ouseley J. described them in Barwood Land, “policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation, all of which could sensibly exist regardless of the distribution and location of housing or other development” (paragraph 47)….
  1. It is not our task to reconcile – if we could – the several judgments at first instance in which the meaning of this policy has been considered. Nor is it our task to select one of the interpretations given to the policy in those cases, in preference to the others. What we must do is interpret the policy correctly – regardless of whether the interpretation we find to be right has already emerged in one or more of the cases to which we have referred.
  1. The “narrow” interpretation of the policy, in which the words “[relevant] policies for the supply of housing” are construed as meaning “[relevant] policies providing for the amount and distribution of new housing development and the allocation of sites for such development”, or something like that, is in our view plainly wrong. It is both unrealistic and inconsistent with the context in which the policy takes its place. It ignores the fact that in every development plan there will be policies that complement or support each other. Some will promote development of one type or another in a particular location, or by allocating sites for particular land uses, including the development of housing. Others will reinforce the policies of promotion or the site allocations by restricting development in parts of the plan area, either in a general way – for example, by preventing development in the countryside or outside defined settlement boundaries – or with a more specific planning purpose – such as protecting the character of the landscape or maintaining the separation between settlements.
  2. Restrictive policies, whether broadly framed or designed for some more specific purpose, may – we stress “may” – have the effect of constraining the supply of housing land. If they do have that effect, they may – again, we emphasize “may” – act against the Government’s policy of boosting significantly the supply of housing land. If a local planning authority is unable to demonstrate the requisite five-year supply of housing land, both the policies of its local plan that identify sites for housing development and policies restrictive of such development are liable to be regarded as not “up-to-date” under paragraph 49 of the NPPF – and “out-of-date” under paragraph 14. Otherwise, government policy for the delivery of housing might be undermined by decisions in which development plan policies that impede a five-year supply of housing land are treated as “up-to-date”.
  3. We cannot see any logical basis for distinguishing here between restrictive policies of a general nature and those with a more specific purpose. It was this suggested distinction between restrictive policies of one sort and restrictive policies of another that generated the “intermediate” or “compromise” construction of the policy in paragraph 49. Mr Clay and Mr Crean submitted that this construction of the policy finds support in paragraph 47 of Ouseley J.’s judgment in Barwood Land. In that paragraph of his judgment Ouseley J. contrasted two kinds of development plan policy: first, “policies for the provision of housing” and “counterpart” restrictive policies that “may be generally applicable to all or most forms of development”, and secondly, “policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation”, which “could sensibly exist regardless of the distribution and location of housing development”. He considered policy EV2 of the South Northamptonshire Local Plan, which says “planning permission will not be granted for development in the open countryside”, as a policy of the first kind. He did not, however, refer to the distinction between these two kinds of policy as if it divided policies that truly are “for the supply of housing” from policies that are not.
  4. To infer that from what Ouseley J. actually said is, we think, to misunderstand what he meant. In our view he was simply acknowledging the distinction between restrictive policies of a general nature – such as policy EV2 – and restrictive policies whose purpose is more specific. That, of course, is a perfectly valid distinction. It may be relevant to the application of the policy in paragraph 49 of the NPPF, and the weight given to a particular policy of the development plan in the planning balance. It is not, however, a test of whether a particular policy is or is not a policy “for the supply of housing”. And we do not believe that Ouseley J. was seeking to suggest that it was. As he went on to say in paragraph 48 of his judgment, “… once the Inspector has properly directed himself as to the scope of paragraph 49 [of the] NPPF … , the question of whether a particular policy falls within its scope, is very much a matter for his planning judgment”. That statement is, in our view, correct – and we shall come back to it when we consider how the policy in paragraph 49 is to be applied.
  5. We therefore reject the “intermediate” or “compromise” interpretation of paragraph 49. Like the “narrow” interpretation, it fails to recognize that it is the effect of certain policies – whether general or specific – in restricting housing development and preventing an authority from demonstrating a “five-year supply of deliverable housing sites” that brings them within the scope of the policy in paragraph 49.
  1. As we have said (in paragraph 23 above), we have not set out to reconcile the several first instance judgments in which the meaning of the policy in paragraph 49 has been considered before. In fact, that would not be possible. We ought to say, however, that those cases in which the court has rejected the “wider” interpretation of the policy have not in our view been correctly decided on that particular point. Of the cases cited to us (see paragraph 20), this may be said of the decision in William Davis, where the judge concluded that a policy restricting development in a “Green Wedge” (policy E20 of the North-West Leicestershire Local Plan, adopted in 2002) was not a relevant policy for the supply of housing within paragraph 49, despite the fact that it prevented housing development on the appeal site (see paragraph 47 of the judgment). We should add, however, that the judge did not have the benefit of all the submissions we have heard on this point, or of the later decisions in which it has been considered. In Wenman the judge appears to have accepted that two policies of a local plan dealing respectively with the “Environmental Implications of Development” and “Design and Layout” (policies D1 and D4 of the Waverley Borough Local Plan 2002) were not policies for the supply of housing, because they were not “general” restrictions on development and fell within the second kind of restrictive policy referred to by Ouseley J. in paragraph 48 of his judgment in Barwood Land (see paragraphs 57 to 59 of the judgment). But that distinction between two kinds of policy restrictive of housing development is not a dividing line between policies that are “for the supply of housing” and those that are not (see paragraphs 36 to 38 above). Again, however, we would add that the judge did not have the advantage of the argument we have heard. It also seems to us that the erroneous interpretation of the policy in paragraph 49 of the NPPF made no difference to the outcome of the proceedings because the two local plan policies in question were not, in fact, restrictive of housing development in either of the two respects identified by Ouseley J. inBarwood Land.

How is the policy in paragraph 49 of the NPPF to be applied?

  1. The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory “presumption in favour of the development plan”, as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the “presumption in favour of sustainable development”, do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework – as the NPPF itself acknowledges, for example, in paragraph 12 (see paragraph 12 above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense.
  2. When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.
  3. The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be (see, for example, the judgment of Lindblom J. in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), at paragraphs 101 to 135).
  4. Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, as Ouseley J. said in paragraph 48 of his judgment in Barwood Land, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.
  5. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is “out-of-date” should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.
  6. One may, of course, infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out-of-date policies for the supply of housing will normally be less than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a “green wedge” or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment (see paragraphs 70 to 75 of Lindblom J.’s judgment inCrane, paragraphs 71 and 74 of Lindblom J.’s judgment in Phides, and paragraphs 87, 105, 108 and 115 of Holgate J.’s judgment in Woodcock Holdings Ltd. v Secretary of State for Communities and Local Government and Mid-Sussex District Council [2015] EWHC 1173 (Admin)).
  7. The policies in paragraphs 14, 47 and 49 of the NPPF are not, as we understand them, intended to punish a local planning authority when it fails to demonstrate the requisite five-year supply of housing land. They are, however, clearly meant to be an incentive. As Sir David Keene said in paragraph 31 of his judgment in Hunston:

“… Planning decisions are ones to be arrived at in the public interest, balancing all the relevant factors and are not to be used as some form of sanction on local councils. It is the community which may suffer from a bad decision, not just the local council or its officers.”


Full Transcript of Rural Gardens are Brownfield Dartford Case now Available

Reblog from Cornerstone Barristers

The transcript of the judgment of Charles George QC (sitting as Deputy High Court Judge) has now become available in Dartford Borough Council v SSCLG [2016] EWHC 635 (Admin.).

The Court held that only “private residential gardens” in “built up areas” were exempt from the definition of “previously developed land” or “brownfield land” within the NPPF. The decision has potentially widespread consequences as brownfield land has a special status throughout national policy, for example:

  • Limited infilling or the complete redevelopment of brownfield sites is not inappropriate development in the Green Belt (para.89 NPPF)
  • Brownfield land is prioritised for development (para.17 & 111 NPPF)

It is a curious result that land outside the built up area (an undefined term in the NPPF) is prioritised for development, whereas land within the built up area, by definition more sustainable, is not. It is also a notable judgment for not adopting the purposive approach to the construction of the NPPF adopted in other cases, notably by the Court of Appeal in Hopkins Homes Ltd v SSCLG [2016] EWCA Civ. 168, in which the Court re-wrote paragraph 49 NPPF to give effect to the Minister’s intention (see Lindblom LJ at [32]).

Ashley Bowes acted for Dartford BC and is advising them whilst they consider whether to appeal the decision.

Please click here to read the judgment in full. 

John Rhodes – Have the Last Four Years of the #NPPF just been a Bad Dream Then?

Four years ago when the NPPF was being mooted many of us warned

-It would lead to less housing being allocated in local plans

-The government would need to set firm rules for SHMAs and allocation of OAN

-The DTC would be no substitute for strategic planning

-The abolition of strategic planning would be a disaster

-It would take years for cooperative arrangements for joint working and agreement of housing overspill to work through.

John Rhodes of course poo pooed all of these.  Now in his Local Plan Experts Group Report he admits all of this was true.  Expert at what screwing up planning and now realising that you have failed spectacularly?


If London’s Green Belt is Inviolate you have to Redevelop Thamesmead for 350,000 dwellings

There are genuine and real options for closing London’s huge housing gap.  I doubt any one will be enough – and good plans are usually hybrid options that get you to the goal.

Here i’m going to examine what a realistic London ‘brownfield max’ option would look like.  London has lost so much industrial and employment land that there are few such areas left that arnt already in plans (such as Old Oak Common etc.) so wont be the needed ‘net new’ to close the massive delivery gap.  Even if the flow of such sites were speeded up the stock would be depleted and although new brownfield sites come forward every year the source stock of employment land, old hospitals etc.would be from an incredibly low base.  It by itself is a small part of the answer.

If you are serious about making the Green Belt ‘Inviolate’ as both Mayoral Candidates want then the only serious means of meeting national policy on meeting housing need in London is wholesale redevelopment of the existing housing stock.  Unless you are going to CPO large parts of the privately owned suburbs that leaves the controversial option of redeveloping social housing estates.  Set aside for the sake of argument the presumption that this would be social cleansing to drive labour voters out and was done by an enlightened Mayor who wished to deliver on his manifesto promises of building houses and protecting the Green Belt.

Most London Council Estates are small and piecemeal.  Most of the worst have gone, leaving small estates often highly popular.  Even Zac Goldsmith assumes no more than 25,000 units from this source.  Many estates are of high architectural quality – like the Cressingham Estate in Lambeth – which far from being demolished should be refurbished and declared a conservation area.

If you wnat to go ‘Brownfield Max’ you have to look at the large concentrations of social housing and go for wholesale redevelopment of wide areas at far higher densities.  There are a few candiates but by far the biggest and with best potential is Thamesmead.

Designed and developed by the GLC with ambitions to be a whole new town it was poorly executed with few notable buildings, few shops, intersected by expressway type roads & no dedicated public transport.  It has public spaces and water features of great potential but overall is a concrete jungle whose planning has been hindered by division between Greenwich and Bexley.

Bungalow Bob Kerslake and Peabody have a plan to enhance the small (25ha out of 800) parts of the project which might link the Crossrail station to its heart and a couple of other places.

Its a well designed scheme which will deliver 2,800 new homes over a decade and possibly as many as another 4,200 in the next decade.  Well designed and conceived but pathetic in its ambition and wholly inadequate to meet the challenge of Londons housing need and the unique opportunities of this site.  Its a Bungalow scaled scheme requiring a Urban Scaled solution. This is London’s largest and best brownfield site – is this the best you can do GLA, Bexley, Greenwich?   The first act of the incoming Mayor shgould be to send the plans back to the drawing board unless they can be phased as part of a more ambitious scheme.

The opportunities here are unique as- as well as Crossrail

-You can extend the Northern Line extending its South London Extension – as long ago planned by the GLA.

-There is potential for a rail and DLR bridge to North of the River.

-You could extend the Jubilee line (as originally planned) also to serve a redeveloped London City Airport

-There are lost on the shelf plans for tram/BRT to the East and West

-You can throw in Crossness Sewage works and replace it with an underground facility on 10% of the site – as in done in many cities around the world now where land is at a premium – like Beijing for example.

-The horrific  A2016 can be relocated within a comprehensive scheme to where it does not destroy the coherence of the area.

In other words the area could be as well connected as any in London.  If so could it be developed to ‘central densities’ according to the SRQ matrix?

Assuming 400 units per ha – 35% for roads, open space and public facilities – an international norm that over 250,000 units if you include Crossness.  If you include some very high density areas around key transport nodes I think you could push that to around 350,000 units, around 12 times the current number of units.  What a criminal waste of land.  This alone could meet around 60% of London’s housing gap over the next 20 years.   It would mean however London getting serious about developing ba new nodal centre – as Paris did with La Defence for example (without pretending that is a good design).

If the incoming Mayor is serious about there manifesto pledges then get on with it at Thamesmead and similar large sites in London, if its all show then please stop playing politics and support Garden Cities around London as its clear you dont have a serious option for ‘brownfield max’.



Pluralism and Empiricism Not Enough to Reform Economics Teaching

I’m not an economist; but i’m not a philologist, astrologer or eugenicist either – argument from authority is no argument when a discipline is so degenerate it needs tearing down and reformulating.

As the debate over the resolution of the crisis continues there is a risk that either

A) most schools will continue to teach the micro is everything philosophy with a smattering of behaviorism and empiricism thrown in

B) The really rad hetorodox schools looked down upon will teach a more pluralist course – with a risk that simply becomes a confusing rattle through of economics history not preparing students for higher research.

I have previously argued that economics teaching needs to concentrate on the contested core ideas.  

But I would go further – in times of crisis of a discipline there is a historical model of how disciplines change, even change their name and how whole new disciplines are formed.

Consider disciplines that didn’t even exist 150 years ago and how they came about.

Consider industrial design – and the Bauhaus institute.  The model is how a creative hothouse institution as a partnership between its teachers and students seeks to ask and answer basic questions which have not been asked before or considered too basic to ask

Like – what is a chair for – how should a chair be designed.

Securing our future making and using resources is a matter of design as well – does economics as it is constituted asking and answering the right questions?

Consider a economics curriculum consisting of nothing but asking and answering such basic questions in an exploratory manner such as

How is a landlord able to charge rent?

How is a bank able to charge interest on money?

And then going where the investigation takes you with people from a variety of factions presenting their answers.  For critical and intelligent students those orthodox professors rattling out tired neoclassical answers would not last long.  The investigation is likely to take students and their teachers into new and neglected corners of introductory curricula – like the trade off between travel and rent, and into practical and day to day models concerning issues of what makes cities expand, collapse, thrive or decline – let the investigation go where it goes and dont care whether or not it fits the conventional boundaries defined for the discipline.

Then start asking questions about whether this is efficient, and whether it could be better designed.

Where is the economics Bauhaus?


Full Steam Ahead for Zoning Based Planning in Budget – Why the Shift is Essential

Im no fan of the Chancellors previously unfocussed let them build where they like approach to planning reform – which clearly failed to produce the number needed.  So the gradual shift towards a zoning based system – signalled in last years housing act – is full steam ahead in the Budget.

more streamlined planning system
Budget 2016 therefore announces:

– the government’s intention to move to a more zonal and ‘red line’ planning approach, where local authorities use their local plans to signal their development strategy from the outset and make maximum use of permission in principle, to give early certainty and reduce the number of stages developers must go through to get planning permission
– measures to speed up the planning system, including minimising the delays caused by planning conditions, and ensuring the delivery of local plans by 2017

-Garden towns, cities, and villages
– The government supports the construction of a new wave of garden towns and
cities across the country, with the potential to deliver over 100,000 homes. The Budget announces that the government will legislate to make it easier for local authorities to work together to create new garden towns, as well as consult on a second wave of Compulsory Purchase Order (CPO) reforms with the objective of making the CPO process clearer, fairer and quicker.
-For areas that want to establish smaller settlements, the government will provide technical and financial support to areas that want to establish garden villages and market towns of between 1,500 to 10,000 homes. The government will shortly announce what planning and financial flexibilities will be offered to local authorities that submit proposals for settlements that deliver a significant number of additional houses.

On this blog ive long argued the only logical step for planning reform to uplift delivery and deliver on large scale brownfield and Garden Communities is to shift to a zoning and subdivision based system.

The reason is it is quicker and produces higher quality results.

I know this because this is my day job.  I have for a many years been based outside of the UK, and fully for five years now.  My day job is as principal masterplanner and urban planner for an international firm with over 3,000 employees.  I am typing this from the city with the fastest growth rate in the world, and have been offline on this blog as I have been concentrating on drawing up a ‘form based’ zoning and subdivision plan for 7sq km for the city with the highest land values in the world.  In a couple of weeks i’m off to a country developing over 100 new cities some over 100 Sq km needed to house a workforce growth of 15 million by 2030.  Do you think they achieve this with a handful of planners taking years to prepare a plan  for a few thousand home which doesn’t even get you a permission?

The English obsession with development control and delay as far as possible style local plans is the biggest misdirection of planning talent in the world – developed or undeveloped.  Planners are trained to write reports not to build towns and place.  Reports aimed at wrapping controversy in a comfort blanket of verbiage rather than securing world class sustainable places.   The English planning system has been adrift of best international practice since the early 70s and the NPPF was its deathnell.  Its only hope is to retool around the skills and practice of zoning and subdivision based systems.

Zoning works because it is quicker, for an experienced masterplanner as you design a community you zone for it- testing at the same time for the key environmental and infrastructural parameters, parameters all wildly disconnected in England  where active barriers are placed to solving problems and securing community consent for a large scale proposal through good design.

Indeed it is quicker by a factor, in the last three weeks me and my team have prepared  a masterplan and zoning scheme for a low energy community of nearly 7 sqkm in three weeks, with a traffic model, public facilities and open space networked roads designs, and cut and fill calculations.  Work has even started on grading the site before the plan is finished.   The client is a local authority development corporation  in partnership with investors.  In a few weeks I hop I can show you it and reveal the some of the techniques necessary for planning to keep up with a world urbanising faster than the profession can plan for it.