SOS Decision – Undersupply in 6 of 10 years not persistent Because of Recession


The Secretary of State has carefully considered the Inspector’s analysis of the buffer at
IR163-166 and carefully considered the Inspector’s conclusion that there are grounds to consider that there is a record of persistent under delivery and that a buffer of 20% is now justified. However, the Secretary of State disagrees with the Inspector’s conclusions. In coming to this conclusion, the Secretary of State has had regard to report into the West Berkshire Housing Site allocations DPD and the DPD Inspector’s conclusions (DPD IR 134) that the housing supply situation is satisfactorily monitored with no reasons to conclude that there is any significant threat to the delivery of housing in West Berkshire.
The Secretary of State also concludes that while there has been an undersupply in 6 ofthe past ten years, this has been in part due to the influence of the recession. As such he finds that a 5% buffer is appropriate.

Developers Plan to Ditch Sherford Design Code Stymied

Plymouth Herald

Alas Devon CC still ruins everything by insiting on Asphalt pavements

The Princes Trust tweeted support for the decision.

Code here

Sherford developers have been blocked from scrapping a strict set of design rules – as councillors said the move would have created a “zombie town” with “years of planning thrown out of the window”.

Housing firms applied to ditch a town code drawn up 13 years ago and replace it with a set of “fundamental principles” allowing greater flexibility over materials and construction methods.

Consortium bosses denied the move would affect the quality of new homes, but members of the planning committee were not convinced.


Cllr Jonny Morris (Lab) said he did not want Sherford to end up like Poundbury in Dorchester, which he described as the sort of place you would see “in the aftermath of a zombie apocalypse”.

Cllr Vivien Pengelly (Con): “I am deeply concerned. Instead of having the highest standard of new homes, we will instead have a rather large housing estate that will all be watered down. I’m sorry, I cannot support this application.

“You have to get the residents on board when you’re doing something as big as this. It’s very sad that it has come to this.”

Cllr Nick Kelly (Con) said: “This is simply far too premature to take such a radical act, disregarding all those measures that allowed permission to be granted in the first place.

“We want development, but everybody thinks ‘This is what we’re going to get’, and at the stroke of a pen years of planning and assurances go out of the window.”

Cllr Sam Davey (Lab) said: “The residents were sold Sherford with this particular mechanism. They would view this in a particularly negative light, and I don’t blame them.”


Ruth Davidson’s Call for More Housebuilding


Planning law privileges those who already have property – disadvantaging the young and poor/.

We will need to be particularly bold when we see restrictive practices. Too much profit comes from tax avoidance, land speculation, financialisation and other unproductive economic activity, rather than through innovation and high performance.

Closing loopholes, increasing enforcement and overhauling regulatory frameworks can go some way to addressing the creeping cronyism that is making free market capitalism an unfree and anti-competitive capitalism, but this stick approach should only be one half of the story. Government also has the ability to set the tone and the direction of travel by using its vast array of levers and resource as a carrot, too. It should do so…


Similarly, policies of ‘help to build’ rather than ‘help to buy’ will do more to address the inability of young people to get on the housing ladder. The biggest ally we have in increasing housing supply is beauty – if new houses complement the local environment and avoid the disastrous design choices of the past we can help build sustainable local support for extra construction.

While Thomas Picketty’s claims of capital growing without bounds at the expense of workers has been disproved by – among others – the Brookings Institute in Washington DC, its analysis of net capital share shows that housing is the only area where capital income displacement of labour income is apparent….

In short, the multiple instabilities of insecure employment, opaque career progression, wage stagnation, high rental and commuting costs and growing financial barriers to home ownership clearly explain why Britain’s young adults don’t feel they have a personal stake in a system that doesn’t work for them….

It is not enough for government to facilitate a discussion about where next for Britain, it has to actually lead. The short-term, election cycle nimbyism of prohibitive planning laws needs to cease and there is no room for one-of-the-in-crowd Davos sycophancy either. At home and abroad we need to press the case for fairer markets.

Local Plan Policy Number 1 Our Plan is out of Date and Wont be up to Date till 2022

South Staffordshire in putting forward a site allocations document for submission this week with only 5 years supply

Top of the last for worst plan policy (i.e not to plan) ever.

Policy SAD1: Local Plan Review
Evidence exists of unmet housing needs across the Greater Birmingham
Housing Market Area (GBHMA) – that includes the Black Country and 9
other neighbouring authorities (including South Staffordshire).
Under the Duty to Co-operate (DtC) South Staffordshire Council will work
collaboratively with other authorities in the Functional Economic Market
Area (FEMA) and the Housing Market Area (HMA) to establish, how issues
of strategic significance can be addressed.
In response to evidence of unmet housing needs, South Staffordshire
Council shall carry out an early review of the Local Plan., and In
developing this new local plan shall look carefully atthe Council will
examine the role that ‘Safeguarded Land’ can play in the allocations of
new homes. The reviewed Local Plan will be in place by 2022. and their
delivery by 2031. The Council shall continue to work positively towards a
Memorandum of Understanding (MoU) with all local planning authorities
across the GBHMA. Employment needs will also be assessed through the
review of the Local Plan.

The Wokingham Case – Is Applying a Lapse Rate and 20% uplift Double Counting FOAN


Wokingham BC v SoS and Cooper Estates

On behalf of the Council, Ms Sheikh QC contended that the Inspector imposed both a 10% “lapse rate” and a 20% “buffer” unlawfully. Had the “lapse rate” not been applied, the Inspector would have found there to have been a five-year supply of deliverable housing sites.

Ms Sheikh contended that an Inquiry is a formal adversarial process: participants are entitled to know the case they have to meet and to adduce evidence and makes submissions in relation to it. If an Inspector is to take a line not explored at the Inquiry, fairness requires him to give a relevant party an opportunity to deal with it: see Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470[2014] PTSR 1145 (“Hopkins Developments“); Castleford Homes v Secretary of State for the Environment [2001] EWHC Admin 77, [2001] PLCR 29; R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin)[2008] JPL 1774.

In this case, so she submitted, no party or witness at the Inquiry contended that a lapse rate of any description should be imposed: its imposition was not in issue. The Inspector had given no indication that he was planning to impose a “lapse rate”. What the Inspector had done was not even what Mr Gregory Jones QC had ultimately suggested at the Inquiry that he might appropriately do but the crucial feature of Mr Jones’s closing submissions was the statement that he Second Defendant was not seeking the imposition of a “lapse rate”. Ms Sheikh submitted that the Council were thus denied a reasonable opportunity to adduce evidence and make submissions on whether any lapse rate should be imposed, what any rate might be and to what it might be applied. She denied that there was any agreement that, if a “lapse rate” fell to be applied, it should be at a uniform rate of 10%. Given its significance in this case, the Inspector’s failure to inform the Council that he might impose one and give them an opportunity to respond was unfair.

But, in any event, so Ms Sheikh submitted, (i) the “lapse rate” and the “buffer” both serve the same purpose, namely to compensate for the risk of under-delivery evident as a result of previous poor predictions. A “lapse rate” approaches the delivery of sites from the supply perspective; the “buffer” seeks to ensure a realistic prospect of achieving the planned supply by increasing the requirement for supply. The “lapse rate” and the “buffer” deal with the same issue from different perspectives. By applying both the Inspector double-counted that factor. The “buffer” is not imposed as a penalty for past failures. (ii) The Council had explained why they considered any application of both would involve double counting, referring the Inspector inter alia to a decision of the Secretary of State about land in Malpas, Cheshire endorsing that view. Ms Sheikh submitted that, if the Inspector could have imposed a “lapse rate”, he had failed to give any reasons for rejecting that case or for not following that decision. (iii) Ms Sheikh further contended that the Inspector’s application of the “lapse rate” was unlawful. The only possible distinction between such a rate and a “buffer” would be if the “buffer” is applied in a blanket manner but a “lapse rate” is applied to specified sites. That the Inspector did not do. To apply it to sites whose estimated supply he had specifically concluded was deliverable was unlawful. She further developed this complaint at various points in her submissions, pointing out, for example, that the Inspector had applied the “lapse rate” to sites with planning permission, notwithstanding footnote 11 in the NPPF, and that one of the reasons he gave for its imposition only concerned sites without permission….

If the local planning authority is required to address in evidence and submissions possible changes to its assessments that other parties are not themselves advocating, the additional time and costs involved will not be negligible and it may distract those involved from what is in issue. If an Inspector considers that an adjustment is one that ought to be, or might be, considered by him even if no party is advocating it, it is not unreasonable for the parties to expect him or her to indicate that to them. In the context of a focussed Inquiry fairness requires an Inspector to do so.

Whether the application of a “lapse rate” and the 20% buffer involved “double counting” (as the Council contend) may be thought to depend on what each is designed to achieve and why they are to be applied.

What has to be compared with the housing requirement is the “supply of specific deliverable sites”. As footnote 11 in the NPPF states, “to be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable.” The estimated supply is thus one that should be realistic.

The object that the “buffer” is intended to achieve is stated in paragraph 47 of the NPPF. Paragraph 47 indicates that in all cases the relevant housing requirement should be increased by a “buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land”. It also indicates that the “buffer” should be increased “to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land”. In each case the buffer does not add to overall requirement for dwellings in the plan period. The identified additional purpose that a “buffer” of 20% (rather than 5%) serves in the immediate five year period is “to provide a realistic prospect of achieving the planned supply”. An increased buffer for that purpose is to be applied “where there has been a record of persistent under delivery of housing”.

The Council’s explanation of why it had not applied a 10% flexibility allowance as well as a “buffer” of 20% was that to do so would be to increase the housing requirement and to reduce the estimated supply for the same reason, namely to ensure that the estimated supply would in fact be realistic given persistent under-delivery (or consistent over-prediction of delivery). It referred to a decision of the Secretary of State in respect of a proposed development in Malpas, Cheshire in which he agreed with the Inspector’s reasoning on certain points including these. The Inspector considered the objective of the 20% “buffer” was to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market and that “the buffer figure thereby allows for some uncertainty and slippage in the delivery of some sites”. He added:

“there is no evidence to support the arbitrary 6 month or 12 month slippage rate assumed by the Appellant across all developments. To apply such an assumption, or the alternative 10% discount (which is equally arbitrary), would result in double counting in that the 20% buffer would also allow significant slippage or non-implementation.”

It is for the decision-maker to determine in the first instance whether or not the application of a “lapse rate” to the estimated five-year supply of deliverable housing to reflect the Council’s “record of tending to over-predict delivery”[20] involves an unwarranted adjustment, given an increase in the housing requirement by 20% “where there has been a record of persistent under delivery of housing”, in each case in order “to provide a realistic prospect of achieving the planned supply”. Assuming that the Inspector thought it did not involve any such “double counting”, he has failed to provide any reasons for his rejection of the Council’s case on that point. If he thought it would have involved “double counting”, he failed to explain why he thought that the Council’s “record of tending to over-predict delivery” could still be a reason for applying a “lapse rate” to the whole of estimated supply as well as applying a 20% “buffer”. In my judgment, therefore, the Inspector failed to give reasons why the Council’s “record of tending to over-predict delivery” was a reason for applying a “lapse rate” to the total estimated five-year supply, given that a 20% “buffer” was also to be applied to the estimated housing need, notwithstanding the Council’s case supported by a decision of the Secretary of State that it involved “double counting”.

It may be noted that, although the arguments were by no means identical, a similar failure to explain why the combination of a discount of 10% to certain large sites and a 20% buffer did, or did not, involve double counting was one of the bases on which the appeal decision, which was the subject of Lindblom J’s judgment in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government supra, was quashed: see at [128]-[130].

For these reasons in my judgment the Inspector’s use of a 10% “lapse rate” applied to whole of the estimated supply for the reasons he gave was unlawful, even if it would not have been unfair for him to have considered the application of a “lapse rate” (as Mr Jones had suggested was possible) to those sites that Mrs Mulliner had not specifically examined on the ground of persistent under-delivery (or constant over-estimating of delivery) of housing in Wokingham. In my judgment he failed to give reasons explaining why he rejected the Council’s case that application of a “lapse rate” to the whole of the supply for that reason was unwarranted given the application of a 20% “buffer” for the same reason. Had the Council been given the opportunity it could also have produced arguments why the other three reasons relied on by the Inspector (not suggested by Mr Jones) did not justify an application of a 10% “lapse rate” across the whole of its estimated supply.

@sajidjavid Inconsistency on Development Limits in Made Neighbourhood Plans

Yesterday we reported

While there is no cap in the BNDP, and no obvious corollary of the site allocation policy HP1 (i.e. that land not allocated is not supported), the larger housing sites, representing both the acceptable location and level of housing, are specifically identified and allocated in the BNDP. Both larger sites and the smaller windfall sites being confined to within the settlement boundary (HP7). The application site, being both unallocated and outside the settlement boundary, falls within neither category above and, as a consequence, the Secretary of State considers the proposals are not policy compliant.

Today a correspondent sent me  LAND AT BOREHAM ROAD, WARMINSTER, BA12 9JP APPLICATION REF: 13/06782/OUT

The Secretary of State notes that the Warminster Neighbourhood Plan has now been made, however it makes no change to the existing limits of development for Warminster shown in the WCS and makes no specific reference to the appeal site (IR15).

How do you square that?   This is pickles level inconsistency (which is saying something).  Opposite conclusions on same issue within 2 days – lawyers will be sharpening their pens.  In the Buckingham case the SoS made no conclusion to harm to openness of countryside, at Warminster he said it would cause no harm.  So there might have been a basis for a distinction, if the logic of the decision letters hadn’t been so appalling.

Two Years Late DCLG Research – Bungs won”t reduce Opposition to Housebuilding


The main findings from the evidence review are:
– The review confirmed that there is limited empirical or theoretical evidence that is
directly relevant to financial payments aimed at reducing opposition to new
– Theoretical work that has been undertaken suggests that direct financial payments are unlikely to influence the attitudes or behaviour of those opposed to new housebuilding and may lead to concerns about due process in determining planning applications.
– Some of the concerns about new housing development that lead to opposition are
unlikely to be assuaged by a financial payment.

Javid- A Plan can Say Nothing About Something and Not be Silent

Recovered decision 


The application site, being outside the settlement boundary, is not allocated for
housing in policy HP1 nor covered by policy HP7 which relates to windfall sites within the settlement boundary. The Secretary of State notes that the Inspector finds no conflict with these policies as he considers that the BNDP does not place a cap on housing numbers norc ontain policies specifically restricting housing development outside the settlement boundary (IR 123). The Inspector, therefore, considers that the BNDP is silent in terms of the proposed development of the application site (IR 189).

Having carefully considered the Inspector’s analysis at IR122-125 and IR 189-191, the
Secretary of State does not agree with the Inspector that the BNDP is silent in terms of the proposed development of the application site as he considers there is a relevant body of policy in the BNDP (summarised at paragraph 5.18 of the Statement of Common Ground between the applicants and AVDC (GEN1)) sufficient to enable the development proposals to be considered. The Secretary of State also disagrees with the Inspector’s conclusion that there is no conflict with policy HP1. The Secretary of State considers that read as a whole, including with the vision for the BNDP and its Introduction, the proposal, being an unallocated site outside the settlement boundary, conflicts with the purpose and effect of  Policy HP1. While there is no cap in the BNDP, and no obvious corollary of the site allocation policy HP1 (i.e. that land not allocated is not supported), the larger housing sites, representing both the acceptable location and level of housing, are specifically identified and allocated in the BNDP. Both larger sites and the smaller windfall sites being confined to within the settlement boundary (HP7). The application site, being both unallocated and outside the settlement boundary, falls within neither category above and, as a consequence, the Secretary of State considers the proposals are not policy compliant.

I would not have out it as the SoS did.  There will be inevitably a JR.  But Javid should prevail.

The mistake I think is reading the NPin isolation from the rest of the DP and one part of the NPPF on ‘silence’ in isolation.

Heres how I would have put it.

  • Para 14 of the NPPF commences with plans meeting objective need
  • Then considers where plans are silent, absent or out of date
  • The AVLP is out of date, it allocates some land for development and protects the open countryside.
  • The NP, using the latest household projections, allocates sufficient land for development to meet a 5 year supply pro-rata.
  • Therefore, read as a whole, the development plan is not out of date or silent.  In allocating land within the NP the implication and intention of the Neighbourhood Planning body was to protect the open countryside outside the development boundary in line with the local plan.  It is the act of the NP in allocation which brings the development plan back into date and  means the LP policy for protection of the countryside remains current.

Why building homes – but not enough – makes Housing Affordability worse

It was the greatest act of political cowardice in Planning post war.

To what am I referring.  John Prescott’s response to the Crow/Whittaker report on the South East Plan in 1999.

The background.

SERPLAN had issued a draft South East Strategy to build no more than 660,000 homes to 2016, against household growth of over 900,000.  They only proposed one growth area.  milton Keynes, and deferred that to further study.  Figures were based on aggregated ‘capacity’ rather than need.  A capacity set by highly restrictive policies.  The term ‘sustainable development’ was tortuously redefined to mean a shortage of development.

Naturally The Late Professor Crow and Rosamund Whittaker would have nothing to do with it. They increased the requirement to 1.1 million (household growth plus allowances for non completion etc.  all rather standard and required these days), with a realistic target of 50% of this coming from Brownfield sites  The response was outrage from the shires.

The Council for the Protection of Rural England called it “a nightmare future of sprawling development, traffic congestion and urban decay”

John Gummer then in opposition concluded

 “the truth is that the electoral arithmetic is absolute. The seats in the South East that the Conservatives need to win are seats where people are implacably opposed to development. They are, of course, also the seats that Labour needs to defend. So neither party is going to look with any favour on the idea of more than a million new homes where voters don’t want them.”

Prescotts ‘compromise’ response was to build 860,000 homes.  Of course we have built half that in the South East outside London.

It simply made matters worse.  Unlike the US where there is a strong correlation between improvements to housing affordability and rate of housebuilding in the UK there is a negative correlation.

Those areas like London and Cambridge that have seen the greatest increase in population, and highest levels of housebuilding, have seen the greatest increase in unaffordability.

What is going on?  This seems perverse.  Think about it.  If you are building houses but at less that the rate required by OAN all you are doing is increasing you population baseline for housing need.  You are adding over time more people in need of homes as children age and adults divorce and retire.  Compromises, very British compromises of the Gummer and Prescott variety simply make matters worse.  If you are going to build build to at least need but never less.

I suspect the debate will flare up again with the NICs forthcoming Oxford-MK-Cambridge Arc competition.  My estimate of how much housing this area (South midlands + London Stansted corridor) will need over 35 years – just under 1.5 million new homes.  I suspect though this time the political arithmetric will be different.  In the motorway corridor seats the conservatives lost seats.   They plus London now firmly outweigh the reclacetrant shires.