Which Balance Normal or Tilted?

If it harms a heritage asset a normal balance


FTB Chambers

The Secretary of State has submitted to judgment in West Oxfordshire District Council’s challenge to an appeal decision relating to a proposed Gladman development at Cote Road, Aston, Oxfordshire.

The Council’s grounds of challenge were that the Inspector had fallen into the trap of failing to consider the interaction between paras. 134 and 14 of the NPPF and therefore applied the wrong test when balancing the harm and benefits of the development, with a consequent failure to comply with the requirements of section 66(1) of the Listed Buildings Act 1990.

The Inspector concluded that

(1) the Council could not demonstrate a five year supply of housing land and so para. 49 and limb 1 of the last bullet point in para. 14 of the NPPF applied;

(2) “less than substantial harm” would be caused to designated heritage assets by implementation of the appeal proposals; and

(3) that harm had to be weighed against the identified benefits, applying the test in limb 1 of the last bullet point in para. 14 of the NPPF that planning permission should be granted unless the adverse impacts “significantly and demonstrably outweigh the benefits”, ie as in limb 1 of the last bullet point in para. 14 of the NPPF.

But the Inspector’s analysis revealed an error of law in that the balancing exercise he undertook involved applying the weighted/tilted balance in limb 1 of the last bullet point in para. 14 of the NPPF when he should have carried out that balancing exercise in the ordinary unweighted way.  He therefore failed to consider the interaction between paras. 134 and 14 of the NPPF, applied the wrong test when balancing the harm and benefits of the development and failed to comply with the duty in s. 66(1).

In fact, this was the same error of law as arose in Forest of Dean District Council v. Secretary of State [2016] EWHC 421 (Admin) and R (Hill) v. Stroud DC and Rooksmoor Mills Ltd [2016] EWHC 3667 (Admin) (and see also R (Leckhampton) v. Tewkesbury BC [2017] EWHC 198 (Admin)).

The Secretary of State submitted to judgment on the making of the claim.  Gladman awaited the grant of permission but also submitted to judgment in the light of Holgate J’s conclusion that the Council’s main argument was “plainly arguable”.

Meyric Lewis acted for West Oxfordshire Council instructed by Susan Gargett.  William Rose of Sharpe Pritchard acted as solicitor on the High Court claim.

Understanding EUV+ and how it Affects Market Value

I thought I understood the draft NPPF definition of affordable housing as 80% of market values.  I thought at first this was ridiculous and assumed it was existing market values.

However reading the draft NPPG revisions alongside it together with the recent Parkhurst Road caselaw I think I was wrong.

However I think we still have a compcated return to circular valuation in cases where affordable housing is not grant funded.

The important thing about the new method (or rather the Islaington.GLA Three Dragons approach applied nationally) is that land value os an output rather than an input after applying all policies.  So developers can never claim a scheme is unviable if a developer has paid too much for land.

It can be laid out as a formula – with a few reasonable assumption

Market Value =((EUV PMH*1.2)+(Build costs MH)*1.2) + ((EUV(1-PMH)*1.2)+(Build costs AH)*1.06)-IN

Where PMH = proportion of site market housing

MH=market housing

AH = affordable housing

In=infrastructure S106 costs +CIL

Where I assume that build costs includes all costs to a developer (including promotion) other than land.

The guidance doesn’t give a standard return to landowners (unlike developers) however in a market economy the return on capital will equalise with return on land which is exactly the same assumption of caselaw (Shifield principle).

if you fix the number of units and infrastructure costs then there are two dependent variables, the proportion of market housing and market value.  The infrastructure effectively draws a horizontal line across the graph which sets the intercept point – it fully comes off the price of the land.

However as the proportion of market houses rises the price falls.  Remember the policies including affordable housing are inputs not outputs.

Indeed it is possible to rearrange the formula into its components price of market housing and price of affordable housing.

In the simplest case then of a 100% funded affordable housing scheme the market price becomes a premium on the affordable housing value depending on the Homes England formula.

For most schemes with a mix the the exact premium will depend site by site on infrastructure costs plus the relative cost of affordable and market building, but it seems to me in plan making the assumption is that such a ‘affordable housing price * X’ approach would be used.

How is land value captured at this point?  Prices for land to developers is squeezed, however housebuilders can then still sell at market values.    If land is released but developers still sell at market values then we have a dual market situation where housebuilders can buy cheap and arbitrage by selling expensively, or where landowners wont release unless they do joint ventures with developers to equalise returns.  .  Indeed land owners could make far more money by developing it themselves.

This is not really a tenable situation compared to the continental system whereby the local state acquires the site at EUV+ and captures the uplift., or SVT in some form.

What if I am wrong on the formula and the market housing price is an input – well then we are back in ‘circularity’ territory.

This puts us in interesting territory.  If plan policies are not viable the solution might be in many cases to increase the proportion of affordable housing to force down prices.




Prince Charles want to Restrict Tall buildings in the City of London over Tower of London World heritage Site Threats


PRINCE Charles is fighting tooth and nail to save the Tower of London from losing its World Heritage status, which is being threatened by the height of buildings in the east of the City that are ruining the Tower’s view.

The Prince of Wales’ concerns were disclosed in new documents on Sunday.

In March, Prince Charles met with Rupert Gavin, the chairman of Historic Royal Palaces which is the charity that looks after the Tower, and its chief executive John Barnes to discuss the future status of the historic site.

According to the Mail, a briefing paper from the meeting says protection of important views of the Tower from the Queen’s Walk on the South Bank, Tower Bridge and London Bridge are “generally effective”.

However, the document claimed: “The wider setting does not have such sufficient protection and has been threatened in recent years by increasingly tall new buildings, particularly in the City.

Prince Charles is fighting to save the Tower of London from losing its World Heritage status
“The United Nations Educational, Scientific and Cultural Organisation (UNESCO) has expressed concern about this, and about any build-up of further tall buildings in the vicinity of the Shard which could put the Tower’s World Heritage status at risk.”

The Prince is understood to be personally involved in trying to protect the Tower.

Last year, Historic Royal Palaces, said it was “extremely concerned” about the skyscrapers surrounding the medieval fortress after city planners allowed the construction for a skyscraper at 1 Leadenhall.

The charity was also strongly opposed to the 541ft “Walkie Talkie” building in Fenchurch Street but City, which was also given a go-ahead by planners.

The Prince has previously expressed concern and showed involvement about other construction work in London.

In 1984 he described the extension proposal for the National Gallery as “a monstrous carbuncle”.

UNESCO’s World Heritage Committee is set to meet in Bahrain later this month and an update on the Tower’s status is believed to emerge.

According to the UNESCO website, the Tower of London is “an internationally famous monument and one of England’s most iconic structures”.

William the Conqueror built the White Tower in 1066 as a demonstration of Norman power, siting it strategically on the River Thames to act as both fortress and gateway to the capital.

The Tower of London is the most complete example of an 11th century fortress palace in Europe

The Prince is understood to be personally involved in trying to protect the Tower

It is the most complete example of an 11th century fortress palace remaining in Europe.

It has been the setting for key historical events in European history, including the execution of three English queens: Anne Boleyn, second wife of Henry VIII; Catherine Howard, Henry’s fifth wife and Lady Jane Grey.

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