There seems to be an increasing trend for councils to refuse applications for housing when they can demonstrate a 5 year housing land supply. This negative position is not in accordance with the NPPF and several recent appeals make quite clear that a 5 year housing supply is not an upper-cap.
Local plan deadlines
In October of this year the government announced that councils must produce local plans for new homes in their area by 2017. Those that do not have a NPPF approved local plan in place by 2017 will have their plan decided and implemented by the government.
At the time of writing 65% of local councils have a fully adopted, NPPF approved, local plan in place. This means that at the time of adoption they are also able to identify a 5 year housing land supply (5YHLS).
As these new local plans begin to settle, it is interesting to see how both the government and local authorities are responding to the practicalities of what being able to demonstrate a 5YHLS actually means.
The practicalities of a demonstrable 5 year housing land supply:
A number of key decisions made at appeal this year highlight that council reasoning for refusing new sites for sustainable housing development, on the basis of having a 5YHLS, is not standing up to scrutiny.
An increasing number of appeals are directly making reference to the fact that 5YHLS is not a maximum but a minimum target.
This coincides with guidance on the review process councils need to undertake in order to ensure the housing land supply is kept up to date. They are required to produce an annual trajectory of how many homes they plan to build in their area which must be reviewed regularly, ideally every five years. This implies they must continue to be open to new and sustainable development sites to ensure that they continue to hit and surpass their target quotas.
It is a minimum not a maximum target:
For example, a recent appeal in Wychavon saw the Inspector reach the following conclusion;
“It is agreed between the parties that the Council can demonstrate a 5 year supply of deliverable housing sites as required by paragraph 47 of the Framework. Under these circumstances, the decision-taking criteria contained in paragraph 14 of the Framework are not engaged. Whilst this is so, the Framework seeks to boost significantly the supply of housing and the ability to demonstrate a 5 year housing land supply should not be seen as a maximum supply.”
The development was allowed.
Presumption in favour of sustainable development still stands:
Most recently, in a called-in appeal in Cherwell, the Secretary of State allowed permission for 54 homes. The application had been refused on the grounds that Cherwell could demonstrate a 5YHLS and their neighbourhood plan resisted developments larger than 20 homes. However, the Secretary of State responded:
“The proposal would be sustainable development and paragraph 187 of the Framework states that decision takers should seek to approve applications for sustainable development where possible.”
And another appeal in Shropshire saw 215 homes allowed outside the settlement boundary on the grounds that the proposal constituted sustainable development and generally accorded with the development plan. The Inspector identified that they could demonstrate a healthy 5 year housing land supply but also conceded that: “the existence of a 5YHLS is no impediment to the grant of permission for the development in view of the foregoing conclusions in its favour.”
Development through appeal?
It seems that the trend for housing developments being decided at appeal continues, even after the implementation of NPPF approved local plans. And the clear message is, that the existence of a 5 year housing land supply does not preclude new sustainable development.
The discussion must continue and councils must be open to it so that housing need can be met not only in the short term, but the long term. The key to good developments in locations which benefit our communities is negotiation, from both developer and council parties, so that more housing schemes are agreed in the round, rather than being decided at appeal and on policy alone.
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