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Housing
Updated to reflect revised Framework (NPPF):
Yes
England
What’s New in this version – 26 November 2018
This chapter has been fully updated to reflect changes within the Revised National
Planning Policy Framework.
Contents
Introduction.............................................................................................3
Legislation, national policy and guidance ..................................................3
The implications of paragraph 11 of the Framework for housing appeal
decisions ..................................................................................................6
Framework paragraph 11, decision-taking section ..........................................6
The need to determine whether or not there is a five-year housing land supply,
and the extent of any shortfall ....................................................................8
Choice of appeal procedure ...................................................................... 10
The Housing Delivery Test and the extent of any shortfall ............................. 10
Structure of decisions where Framework paragraph 11 d) applies ................... 11
Application of Framework paragraph 11 d) ................................................. 11
Framework paragraph 14: application of the paragraph 11 d) with regard to
neighbourhood plans ............................................................................... 14
The presumption in favour of sustainable development ................................. 15
The final section 38(6) balance ................................................................. 16
Assessing whether or not a five-year housing land supply exists, in
accordance with Framework paragraph 73, and the extent of any shortfall
in supply ................................................................................................ 17
What is the 5YHLS requirement figure? ...................................................... 19
Calculating the 5YHLS figure based on plan policies ..................................... 20
Calculating the 5YHLS based on the local housing need assessment................ 21
Should the buffer be 5% or 20%? ............................................................. 22
Which sites can be included in the five-year supply? .................................... 22
Prematurity ........................................................................................... 23
Affordable housing ................................................................................. 23
Background ........................................................................................... 23
Casework issues ..................................................................................... 26
Choice of appeal procedure ...................................................................... 27
Viability ................................................................................................ 27
Planning obligations and conditions ........................................................... 28
Self-build and custom housebuilding ...................................................... 32
Background ........................................................................................... 32
Development of garden land and density ................................................ 33
National planning policy........................................................................... 33
Casework issues ..................................................................................... 34
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Development plan policy .......................................................................... 35
Definitions ............................................................................................. 35
Housing in the countryside and villages .................................................. 36
National policy and guidance .................................................................... 36
Development plans ................................................................................. 36
Casework .............................................................................................. 37
Housing for rural workers....................................................................... 38
Background ........................................................................................... 38
Issues in casework ................................................................................. 38
Green Belt ............................................................................................. 40
Conditions ............................................................................................. 40
Choice of procedure ................................................................................ 41
Deleting or varying an agricultural occupancy condition ................................ 42
Holiday Cottages .................................................................................... 43
Housing Standards ................................................................................. 43
Background ........................................................................................... 43
National planning policy and guidance ....................................................... 44
Casework .............................................................................................. 45
Conditions ............................................................................................. 46
Residential Annexes ............................................................................... 46
Houses in Multiple Occupation and Permitted Development Rights .......... 48
Background ........................................................................................... 48
Issues in casework ................................................................................. 48
Annex 1 ................................................................................................. 49
Annex 2 ................................................................................................. 50
Annex 3 ................................................................................................. 51
Annex 4 ................................................................................................. 52
Annex 5 ................................................................................................. 53
Annex 6 ................................................................................................. 55
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Introduction
1.
Inspectors make their decisions on the basis of the evidence before them.
Consequently, they may, where justified by the evidence, depart from the
advice given in this chapter.
2.
Housing casework is likely to be encountered in various guises throughout an
Inspector’s career. This training material is based on practical experience and
is intended to cover the range of issues that you will encounter both in early
cases and also in more demanding work as your allocation level increases. It
is primarily directed at appeals casework but will also be relevant in the
conduct of development plan examinations.
3.
The general advice in the ITM chapte
r The approach to decision-making
applies to housing appeals as much as to any other type of appeal. The
advice below should be read alongside the general advice in that chapter.
4.
This training material applies to casework in England only1 and incorporates
key points from caselaw.
Legislation, national policy and guidance
5.
At the outset it is important to remember that the statutory provisions in
s70(1)(a) of the 1990 Act2 and section 38(6) of the 2004 Act3 apply to all
planning appeals, including housing appeals. Those provisions are not
displaced by paragraph 11 or by any other part of the (Revised) National
Planning Policy Framework [the Framework], as Framework paragraph 12
makes clear. In the context of s38(6), the Framework has the status of a
material consideration which (when considered together with any other
relevant material considerations) may or may not indicate that an appeal
should be determined otherwise than in accordance with the development
plan.
6.
Specific policies on housing are set out in Section 54 (paragraphs 59-79) of
the Revised Framework. You should be familiar with those policies and also
with what is said about planning for housing in Revised Framework Section 3
‘Plan-making’ (paragraphs 15-37).
1 PINS Wales produces separate material for Wales which summarises differences in policy.
2 “In dealing with an application for planning permission or permission in principle
the authority shall
have regard to
the provisions of the development plan, so far as material to the application.”
[s70(2)(a)
Town and Country Planning Act 1990] 3 “If regard is to be had to the development plan for the purpose of any determination to be made
under the planning Acts
the determination must be made in accordance with the plan unless
material considerations indicate otherwise”
.
[s38(6)
Planning and Compulsory Purchase Act 2004 –
emphasis added]
4 “Delivering a sufficient supply of homes”
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7.
Some of the key elements of the Revised Framework’s housing policies5 are:
•
To support the Government’s objective of significantly boosting the
supply of homes, it is important that a sufficient amount and variety of
land can come forward where it is needed, that the needs of groups with
specific housing requirements are addressed and that land with
permission is developed without unnecessary delay.
[paragraph 59]
•
To determine the minimum number of homes needed, strategic policies
should be informed by a local housing need assessment, conducted using
the standard method in national planning guidance – unless exceptional
circumstances justify an alternative approach which also reflects current
and future demographic trends and market signals. In addition to the
local housing need figure, any needs that cannot be met within
neighbouring areas should also be taken into account in establishing the
amount of housing to be planned for.
[paragraph 60]
•
Strategic policy-making authorities should establish a housing
requirement figure for their whole area, which shows the extent to which
their identified housing need (and any needs that cannot be met within
neighbouring areas) can be met over the plan period.
[paragraph 65]
•
Strategic policy-making authorities should have a clear understanding of
the land available in their area through the preparation of a strategic
housing land availability assessment. From this, planning policies should
identify a sufficient supply and mix of sites, taking into account their
availability, suitability and likely economic viability. Planning policies
should identify a supply of:
a) specific, deliverable sites for years one to five of the plan period
with an appropriate buffer; and
b) specific, developable sites or broad locations for growth, for
years 6-10 and, where possible, for years 11-15 of the plan.
[paragraph 67]
•
Local planning authorities should identify and update annually a supply
of specific deliverable sites sufficient to provide a minimum of five years’
worth of housing against their housing requirement set out in adopted
strategic policies, or against their local housing need where the strategic
policies are more than five years old unless the strategic policies have
been reviewed and found not to require updating. The supply of specific
deliverable sites should, in addition, include a buffer (moved forward
from later in the plan period) of:
5 NB these are summaries and you should refer to the Framework for the full text, relevant footnotes,
and the Glossary for definitions
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a)
5% to ensure choice and competition in the market for land; or
b) 10% where the local planning authority wishes to demonstrate a
five year supply of deliverable sites through an annual position
statement or recently adopted plan, to account for any fluctuations
in the market during that year; or
c)
20% where there has been significant under delivery of housing
over the previous three years, to improve the prospect of achieving
the planned supply.
[paragraph 73]
•
A five year supply of deliverable housing sites, with the appropriate
buffer, can be demonstrated where it has been established in a recently
adopted plan, or in a subsequent annual position statement which:
a) has been produced through engagement with developers and others
who have an impact on delivery, and been considered by the
Secretary of State; and
b) incorporates the recommendation of the Secretary of State, where
the position on specific sites could not be agreed during the
engagement process.
[paragraph 74]
•
the size, type and tenure of housing needed for different groups in the
community should be assessed and reflected in planning policies; and
where a need for affordable housing has been identified, planning
policies should specify the type of affordable housing required and
expect it to be met on site, unless off-site provision or a financial
contribution of broadly equivalent value can be robustly justified, and the
agreed approach contributes to the objective of creating mixed and
balanced communities
[paragraph 61] and [paragraph 62]
•
In rural areas, planning policies and decisions should be responsive to
local circumstances and support housing developments that reflect local
needs. Local planning authorities should support opportunities to bring
forward rural exception sites that will provide affordable housing to meet
identified local needs, and consider whether allowing some market
housing on these sites would help to facilitate this.
[paragraph 77]
•
To promote sustainable development in rural areas, housing should be
located where it will enhance or maintain the vitality of rural
communities. Planning policies should identify opportunities for villages
to grow and thrive, especially where this will support local services.
Isolated new homes in the countryside should be avoided unless certain
specific circumstances apply
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[paragraph 78] and [paragraph 79]
8.
You should also have regard to relevant sections of the government’s Planning
Practice Guidance [PPG], including:
•
Housing need assessment6
•
Housing and economic land availability assessment
•
Housing – optional technical standards
•
Neighbourhood planning
•
Rural housing
•
Self-build and custom housebuilding
•
Starter homes
•
Build to rent7
9.
Some of the implications of this national policy and guidance are explored in
the rest of this chapter. The chapter also reflects the extensive caselaw
concerning housing appeals since the publication of the 2012 Framework. A
new and extensively revised Framework was published in July 2018 (“the
Revised Framework”). However, much of the caselaw referring to the 2012
Framework remains relevant, since many of its provisions have been carried
forward into the Revised Framework, albeit with modifications and, in most
cases, different paragraph numbers. Inspectors may need to refer back to
the 2012 Framework to understand how the caselaw relates to the new
edition. The footnotes to this chapter provide extracts from, and references
to, key judgments.
The implications of paragraph 11 of the Framework for housing
appeal decisions
Framework paragraph 11, decision-taking section
10. Paragraph 11 of the Framework states that plans and decisions should apply a
presumption in favour of sustainable development.
11. Paragraph 11 goes on to say, in its “decision-taking” section:
For decision-taking this means:
c)
approving development proposals that accord with an up-to-date
development plan without delay; and
d)
where there are no relevant development plan policies, or the policies
which are most important for determining the application are
out‑
of‑
date7, granting permission unless:
6 Formerly
Housing and economic development needs assessments
7 First published September 2018
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i. the application of policies in this Framework that protect areas or
assets of particular importance provides a clear reason for refusing the
development proposed6; or
ii. any adverse impacts of doing so would significantly and demonstrably
outweigh the benefits, when assessed against the policies in this
Framework taken as a whole.
Footnote 6 sets out an exclusive list of the policies in the Framework that
paragraph 11 d) i. refers to, and makes it clear that paragraph 11 d) i. does
not refer to development plan policies. Footnote 7 (to paragraph 11) is
explained i
n paragraph 16 onwards of this ITM chapter.
12. Framework paragraph 11 c) logically applies only where there is no conflict
with the development plan, there are relevant development plan policies, and
the relevant policies are not out‑of‑date. If all these circumstances apply, the
development proposal will benefit from the presumption in favour of
sustainable development8 (see
paragraphs 47-52 below).
13. If the development proposal is in conflict with a development plan which
contains relevant policies, and those policies are not out of date, the proposal
will not benefit from the presumption in favour of sustainable development9.
Framework paragraph 12 advises that
where a planning application conflicts
with an up-to-date Local Plan permission should not usually be granted.
14. Framework paragraph 11 d) applies where there are no relevant policies in
the development plan, or the policies that are most important for determining
the application are out of date. It is for the decision-maker to determine if
there are no “relevant” policies or which policies are “most important for
determining the application”. The meaning of those phrases has not yet been
considered by the courts after the publication of the Framework.
15. While cases where there are no relevant policies may sometimes be
encountered, they are likely to be fairly uncommon10. It is more likely for the
policies that are most important for determining the application to be found to
be out of date for reasons which may include a significant change in
circumstances, or the emergence of later national policy, including the
Framework itself (see paragraphs 212-213 of the Framework)11. However,
paragraph 213 of the Framework provides that existing policies should not be
8
East Staffordshire BC v SSCLG & Barwood Strategic Land [2016] EWHC 2973 (Admin) confirms that
local plans are intended to be the means by which sustainable development is secured and that up to
date plans promote sustainable development.
9 This is clear from the judgments i
n Barwood Strategic Land v East Staffordshire BC and SSCLG
[2017] EWCA Civ 893 and
Trustees of the Barker Mill Estates and Test Valley BC & SSCLG [2016]
EWHC 3028 (Admin) and
is supported by the approach advocated i
n Cheshire East BC v SSCLG
[2016] EWHC 571 (Admin) (paras 19-25).
10 “A plan cannot be absent or silent if there is a body of policy relevant to the proposal being
considered and sufficient to enable the development proposal to be judged acceptable / unacceptable
in principle” –
Bloor Homes East Midlands Limited v SSCLG [2014] EWHC 754 (Admin). See also
South Oxfordshire DC v SSCLG [2016] EWHC 1173 (Admin)
.
11 See
Suffolk Coastal DC v Hopkins Homes Ltd & SSCLG and Richborough Estates Partnership LLP &
SSCLG v Cheshire East BC [2017] UKSC 37, para 55
; R (Wynn-Williams v SSCLG [2014] EWHC 3374
(Admin); Colman v SSCLG [2013] EWHC 1138 (Admin); Gladman Developments Ltd v Daventry DC
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considered out-of-date simply because they were adopted prior to its
publication. Weight should be given to them depending on their consistency
with the policies in the Framework.
16. In addition, footnote 7 to Framework paragraph 11 d) states that:
This includes, for applications involving the provision of housing, situations
where the local planning authority cannot demonstrate a five-year supply of
deliverable housing sites (with the appropriate buffer, as set out in paragraph
73); or where the Housing Delivery Test indicates that the delivery of housing
was substantially below (less than 75% of) the housing requirement over the
past three years. Transitional arrangements for the housing delivery test are
set out in Annex 1.
17. Guidance on assessing whether either of, or both, these criteria apply is given
in the next three sub-sections of this chapter.
18. In cases involving the provision of housing where you have determined that
the LPA cannot demonstrate a five-year housing land supply, and/or where
the delivery of housing in its area has been substantially below the
requirement over the past three years, this should be clearly established and
Framework paragraph 11 d) applied by virtue of footnote 7. In your decision
it will be necessary to show the relevant test in the Framework has been used
correctly as part of the decision-making process.
The need to determine whether or not there is a five-year housing land supply, and
the extent of any shortfall
19. Because of Framework footnote 7, determining whether or not there is a five-
year housing land supply [5YHLS] will be an important first step in many
housing appeals. If there is not a 5YHLS, it may well also be necessary to
determine the extent of the shortfall in supply, in order to determine the
weight to be given to the benefit of the development in providing additional
housing12. Specific advice on assessing 5YHLS is given in the next main
section of this chapter.
12 Although the extent of the shortfall does not affect the operation of footnote 7 and its triggering of
paragraph 11(d), the judgment i
n Phides Estates (Overseas) Ltd v SSCLG [2015] EWHC 827 (Admin)
explains why the extent of the shortfall (and indeed other matters connected with it) must be
determined so that the exercise of planning judgment is properly carried out:
“Naturally, the weight
given to a proposal’s benefit in increasing the supply of housing will vary from case to case. It will
depend, for example, on the extent of the shortfall, how long the deficit is likely to persist, what steps
the authority could readily take to reduce it, and how much of it the development would meet. So the
decision maker must establish not only whether there is a shortfall but also how big it is, and how
significant” (para 60). The judgment i
n Shropshire Council v SSCLG & BDW Trading Ltd [2016]
EWHC 2733 (Admin) confirms that Inspectors will generally need to make judgments on housing need
and supply (see para 27 of the judgment). The Court considered that the Inspector could not
properly apply paragraph 49 and paragraph 14 of the Framework without first reaching a judgment
on housing need and housing supply on the evidence before him. The Court confirmed that this does
not require the kind of detailed analysis that takes place at a local plan examination, nor is it always
necessary to identify a specific figure – a bracket or range or approximate uplift on DCLG
household projections is acceptable – but a judgment needs to be made on the evidence
available despite its imperfections (para 28). See also
Crane v SSCLG [2015] EWHC 425
(Admin) an
d Suffolk Coastal DC v Hopkins Homes Ltd & SSCLG and Richborough Estates & SSCLG v
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20. However, in cases where one or both main parties assert that the LPA can
demonstrate a 5YHLS, and there is no evidence to the contrary, it will not
usually be necessary to consider the matter further.
21. Equally, if the parties agree that there is not a 5YHLS and also agree on the
extent of the shortfall, you will not need to probe the matter further unless
there is other evidence casting doubt on that agreed position.
22. Even when there is a dispute about whether or not a 5YHLS exists, or on the
extent of any shortfall, it may not always be necessary for you to reach a
decision on that question. For example:
• If you are allowing the appeal because the proposal is in accordance with
the development plan it should not usually be necessary to reach a firm
conclusion on housing land supply.
• If you are concluding that the proposal would cause harm, consider
whether the adverse impacts would significantly and demonstrably
outweigh the benefits (this is the test in Framework paragraph 11 d) ii.
even if there were a shortfall in five-year supply to the extent argued by
the appellant13. If you consider this to be the case, you would not need
to reach a firm conclusion about 5YHLS. Instead your conclusions could
be expressed along the following lines: “Even if I were to conclude there
is a shortfall in the five-year housing land supply on the scale suggested
by the appellant, the adverse impacts of granting permission would
significantly and demonstrably outweigh the benefits …” Provided that
your planning balance is made on this basis there would be no conflict
with the
Phides Estates judgment (see footnote 12), because your
decision will be based on the maximum possible shortfall in five year
supply that has been put to you and, therefore, on the maximum weight
that could be attached to any benefit through increasing the supply of
housing.
• Conversely, you may be able to conclude that any adverse impacts of
the proposed development would not significantly and demonstrably
outweigh the benefits, even if the shortfall is as low as the LPA claim14.
This is effectively the reverse of the situation described in the previous
bullet point. In such circumstances you would not need to reach a
definite finding on the extent of the shortfall, as the proposal would
benefit from the presumption in favour of sustainable development in
any event (see
paragraph 47 below). This is provided that Framework
paragraph 11 d) i. which protects areas of assets of particular
importance is not relevant.
23. In cases where none of the parties have raised 5YHLS as an issue, it will be
for you as decision-maker to determine whether or not you need to seek
Cheshire East BC [2016] EWCA Civ 168 which confirm that the extent of the shortfall and the steps
being taken to remedy it are relevant to the weight to be attached to the conflict with development
plan policies in undertaking the planning balance.
13 On the assumption that the appellant is arguing for a higher shortfall than the LPA.
14 On the assumption that the LPA is arguing for a lower shortfall than the appellant.
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further information on that issue to inform your decision. For example, where
the development is small, and will not make a significant difference to the
overall 5YHLS position even if there is a shortfall, it may not be necessary to
do so. However, if any of the parties has raised the 5YHLS issue, you must
consider it, seeking further information as necessary (see
paragraphs 24-26
below).
Choice of appeal procedure
24. Where the existence of a 5YHLS or the extent of any shortfall is disputed, you
may be presented with a considerable amount of evidence regarding the
deliverability of particular sites. There may also be disagreement over what
the 5YHLS requirement is.
25. In any such cases you will need to consider:
•
Are issues relating to 5YHLS likely to be material to your decision?
•
If so, does the evidence need to be tested by questioning?
26. If the answer to both these questions is yes, you are likely to conclude that
the appeal should be dealt with by means of a hearing or inquiry. The same
conclusion is likely to apply if the parties have not addressed the issue of
5YHLS, but you consider that it is material to your decision and that you need
to hear evidence on it. Inspectors and case officers should be pro-active in
identifying and discussing such cases well before the event date. The appeal
may need to be re-allocated to another Inspector if you are not yet trained to
deal with hearings or inquiries.
The Housing Delivery Test and the extent of any shortfall
27. Footnote 7 indicates that Framework paragraph 11 d) is also triggered in
circumstances where the Housing Delivery Test [HDT] indicates that the
delivery of housing has been substantially below the housing requirement
over the past three years. Therefore, when dealing with housing appeals you
also need to determine whether or not this criterion applies.
28. The footnote 7 criterion will apply from the day following the publication of the
first HDT results by MHCLG in November 2018. The phrase “substantially
below” is defined in footnote 7 as “less than 75%” of the housing
requirement. However, that 75% figure only applies from November 2020.
Transitional provisions in Framework paragraph 215 make it clear that the
applicable figure from November 2018 to November 2019 is 25%, and from
November 2019 to November 2020, 45%.
29.
A rulebook setting out the method for calculating the HDT result was
published alongside the new edition of the Framework in July 2018. The
HDT does not apply to National Park Authorities, the Broads Authority, or to
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development corporations without full powers. The level of detail set out in
the rulebook, and the fact that the results are published by MHCLG, should
mean that there is little, if any, scope for dispute over whether the test is met
and the extent of any shortfall in delivery. However, the advice in the
previous sub-section of this chapter should be followed in any cases where
there is a significant disagreement.
Structure of decisions where Framework paragraph 11 d) applies
30. The following, broad three-step structure is likely to be appropriate for appeal
decisions in which the Framework paragraph 11 d) approach is to be followed,
in order to properly reflect the statutory role of the development plan and the
status of the Framework as a material consideration:
Step 1: Before applying paragraph 11 d) of the Framework, assess the
development proposal against your main issues and relevant development
plan policies in the usual way (see the ITM chapter
The approach to decision-
making), reaching conclusions on each main issue and identifying whether or
not there is a conflict with the development plan as a whole15.
Step 2: Make the assessment required by Framework paragraph 11 d). This
will lead to a conclusion whether or not the proposal benefits from the
presumption in favour of sustainable development which is a material
consideration.
Step 3: Make the final s38(6) balance, by determining whether or not the
outcome of the assessment at Step 2, and any other material considerations,
indicate that planning permission should be granted notwithstanding any
conflict with the development plan identified at Step 1.
31. This broad decision structure will of course need to be tailored to meet the
specific circumstances of each case and therefore may not need to address
every matter covered in this chapter.
32. The rest of this section focusses on how to apply Step 2 – the Framework
paragraph 11 d) assessment – and Step 3 – the final s38(6) balance. There is
a flow-chart at Annex 2 to this chapter summarising the overall approach.
Application of Framework paragraph 11 d)
33. The first step in applying Framework paragraph 11 d) is to consider, under
paragraph 11 d) i., whether there are any policies in the Framework which
protect areas or assets of particular importance that are relevant to the
proposed development before you. If there are, the test in paragraph 11 d) i.
15 Unless there are no relevant development plan policies, in which case you will not be able to reach
any such conclusion.
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should be applied16. If there are not, you should move on directly to the test
in paragraph 11 d) ii.
Framework paragraph 11 d) i.
34. Framework footnote 6 provides a complete and exhaustive list of those
Framework policies to which paragraph 11 d) i. refers: there are no others,
and footnote 6 specifically indicates that paragraph 11 d) i. does not refer to
development plan policies. Where any of the footnote 6 Framework policies
are relevant to the proposed development, it should first be assessed against
those relevant policies. The provisions in Framework paragraph 11 d) ii. do
not apply to paragraph 11 d) i. Instead, any relevant footnote 6 Framework
policies should be applied in their own terms, on an unweighted basis17.
Where the Framework policies listed in footnote 6, such as paragraphs 195
and 196, require a balance to be struck, that balance must not be confused
with the one in Framework paragraph 11 d) ii. and should be undertaken first
and separately.
35. Where the outcome of the assessment against the footnote 6 Framework
policies provides a clear reason for refusing the development proposed, this
will be an important material consideration in the final section 38(6) balance
(see
paragraphs 53 to 57 below).
36. If, on the other hand, the assessment against those footnote 6 Framework
policies does not indicate that permission should be refused, it will be
necessary to go on and apply Framework paragraph 11 d) ii. This will also be
necessary in cases where there are no footnote 6 policies that are relevant to
the proposed development.
Framework paragraph 11 d) ii.
37. The test in Framework paragraph 11 d) ii. is whether any adverse impacts of
granting permission would significantly and demonstrably outweigh the
benefits, when assessed against the policies in the Framework taken as a
whole. This test, which is commonly referred to as “the tilted balance”, must
not be reversed18.
38. Note that the paragraph 11 d) ii. test refers to the policies in the Framework
taken as a whole. Just as you would with development plan policies, you
must consider the development proposal against those Framework policies
which weigh against the development proposal as well as those that weigh in
favour of it. (To take a hypothetical example, a development might comply
with the Framework policies to significantly boost the supply of homes,
promote economic growth and promote good design, but conflict with its
16 This approach, of dealing with paragraph 11 d) i. first, is informed by the judgments i
n Forest of
Dean DC v SSCLG & Gladman Developments Ltd [2016] EWHC 421 (Admin), and i
n Borough of
Telford & Wrekin v SSCLG [2016] EWHC 3073 (Admin).
17 See
Forest of Dean DC v SSCLG & Gladman Developments Ltd [2016] EWHC 421 (Admin), para
37.
18
In Wenman v SSCLG [2015] EWHC 925 (Admin) the Court held that the Inspector erred in
applying the wrong test when concluding that that “the overall significant benefits do not and could
not outweigh the substantial harm to the surrounding area”.
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policies on sustainable transport and best and most versatile agricultural
land).
39. As part of the paragraph 11 d) ii. test you should also assess the weight to be
attributed to the proposal’s conflict with relevant development plan policies,
whether or not they are out of date19, and to the adverse impacts associated
with that conflict. Considering the weight to be given to conflicts with
development plan policies, rather than to the policies themselves, in your
decision will avoid giving the impression that you are reducing the statutory
weight which the development plan carries in the final section 38(6) balance.
40. As the Courts have repeatedly emphasised, the attribution of weight in the
paragraph 11 d) ii. test is a matter for the decision-maker. Framework
paragraph 213 states that due weight should be given to relevant policies in
existing plans according to their degree of consistency with the Framework.
This requires an analysis of in what way, and to what extent, the policies in
question are or are not consistent with the Framework, in order to determine
the weight to be accorded to each policy conflict20. As part of this, footnote 7
of the Framework ‘triggers’ the need for a development proposal to be
considered against paragraph 11 d) ii. but this, in itself, does not determine
the weight to be attached to the conflict with any development plan policies
relevant to that proposal. Furthermore, the fact that a particular
development plan policy may be chronologically old is, in itself, irrelevant for
the purposes of assessing its consistency with policies in the Framework and
whether it should be considered “out-of-date”.
41. The weight given to conflicts with development plan policies may also be
affected by the circumstances of the case, including the particular purpose of
the policy, whether there is a failure to achieve a 5YHLS and the reasons for
this, the extent of the shortfall and any steps being taken to address it21.
Thus it will usually be necessary also to consider how far the housing land
supply falls short of the five-year requirement, as this could affect the weight
you give to any conflict with development plan policy and to the proposal’s
benefit in terms of increasing the supply of housing22. The degree of benefit
could also be affected by the number of dwellings proposed and therefore the
extent of their contribution to the supply of housing. In cases where the HDT
demonstrates that the delivery of housing has been below the housing
requirement over the past three years, and especially where it has been
19
In Suffolk Coastal DC v Hopkins Homes Ltd & SSCLG and Richborough Estates Partnership LLP &
SSCLG v Cheshire East Borough Council [2017] UKSC 37 the Supreme Court confirmed
that the
weight to be given to development plan policies is a matter of planning judgment for the decision
maker, and that it is not necessary to label policies as “out of date” to determine the weight to be
attributed to them. These findings of the Supreme Court reinforced the judgment i
n Crane v SSCLG
[2015] EWHC 425 (Admin) that the Framework does not prescribe the weight to be given to policies
in a plan which are “out of date”, nor is the weight to be attributed to them fixed in case law.
However, development plan policies must not be judged to carry no weight or be disregarded as a
result of being deemed out-of-date. See als
o Gladman Developments Ltd v Daventry DC [2016]
EWCA Civ 1146. 20
See
Daventry DC v SSCLG and Gladman [2015] EWHC 3459 (Admin), subsequently confirmed in
the Court of Appeal
– Gladman Developments Ltd v Daventry DC [2016] EWCA Civ 1146
.
21 See the Crane judgment above, and
Suffolk Coastal DC & SSCLG v Hopkins Homes Ltd &
Richborough Estates & SSCLG v Cheshire East BC [2016] EWCA Civ 168.
22 See the judgments referenced in footnote 12 above.
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“substantially below” (Framework footnote 7), the extent of the shortfall in
delivery may similarly be a relevant consideration.
42. Balancing all these various considerations against one another is a matter of
judgment for you as the decision-maker. In applying the paragraph 11(d)(ii)
test, there is no need to attempt a quasi-scientific exercise, allocating finely-
calibrated degrees of weight to each consideration. Furthermore, paragraph 9
of the Framework advises that the 3 objectives of sustainable development
are not criteria against which every decision can or should be judged. But it
must be clear from your reasoning why you have concluded, either that any
adverse impacts of granting permission would significantly and demonstrably
outweigh the benefits, when assessed against the policies in the Framework
taken as a whole, or that they would not. That will require you to exercise
your planning judgment and to explain clearly and succinctly how this has
been done.
Framework paragraph 14: application of the paragraph 11 d) with regard to
neighbourhood plans
43. Paragraph 14 of the Revised Framework applies in situations where paragraph
11 d) is triggered and where the proposed development conflicts with a
neighbourhood plan. In such circumstances, paragraph 14 advises that the
adverse impact of allowing development that conflicts with the neighbourhood
plan is likely to significantly and demonstrably outweigh the benefits, provided
all of the following apply:
a) the neighbourhood plan became part of the development plan two years
or less before the date on which the decision is made;
b) the neighbourhood plan contains policies and allocations to meet its
identified housing requirement;
c)
the local planning authority has at least a three year supply of
deliverable housing sites (against its five year housing supply
requirement, including the appropriate buffer as set out in Framework
paragraph 73); and
d) the local planning authority’s housing delivery, as measured by the HDT
from November 2018 onwards, was at least 45% of that required over
the previous three years.
44. Framework paragraph 216 makes the following transitional arrangements:
•
up to and including 11 December 2018, paragraph 14 a) also includes
neighbourhood plans that became part of the development plan more
than two years or less before the date on which the decision is made;
•
from November 2018 to November 2019, housing delivery (paragraph
14 d) should be at least 25% of that required over the previous three
years, as measured by the HDT.
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45. It is important to be aware that paragraph 14 does not change the footnote 7
criteria under which Framework paragraph 11 d) may be triggered. But the
statement that “the adverse impact of allowing development that conflicts
with the neighbourhood plan is likely to significantly and demonstrably
outweigh the benefits” is a statement of Government policy, and so it will be
an important material consideration in any appeal to which paragraph 14
applies. This does not mean that every such appeal must automatically be
dismissed. But your decision must make it clear that the policy statement in
paragraph 14 has been considered when applying paragraph 11 d) and that
appropriate weight has been given to it.
46. Inspectors also need to be very aware of the fact that paragraph 14 a) makes
“the date on which the decision is made” one of the criteria for determining
whether or not the paragraph 14 policy statement applies. Accordingly,
Inspectors and PINS need to make every effort to issue promptly decisions to
which the policy statement may apply. This will avoid a situation arising in
which accusations could be made that the decision had been delayed so that
the policy statement did not apply.
The presumption in favour of sustainable development
47. If you conclude that any adverse impacts of granting permission would not
significantly and demonstrably outweigh the benefits, when assessed against
the policies in the Framework as a whole, Framework paragraph 11 d) makes
it clear that the presumption in favour of sustainable development will weigh
in favour of the proposal.
48. On the other hand, if you reach the opposite conclusion (that any adverse
impacts of granting permission would significantly and demonstrably outweigh
the benefits, when assessed against the policies in the Framework as a
whole), the proposal will not benefit from the presumption in favour of
sustainable development.
49. Your conclusion on whether or not the proposal benefits from the presumption
in favour of sustainable development will then be a material consideration to
be weighed in the final balance when considering whether material
considerations exist to outweigh the conflict with the development plan, in
accordance with section 38(6) – see the next sub-section of this chapter.
50. The Courts have determined that paragraph 14 in the previous (2012)
Framework explains in clear and complete terms the circumstances in which,
and the way in which, the presumption in favour of sustainable development
is intended to operate. There is no other “presumption in favour of
sustainable development” in the Framework either explicit or implicit23.
Logically this must also apply to paragraph 11 in the Revised Framework,
23
Barwood Strategic Land v East Staffordshire BC and SSCLG [2017] EWCA Civ 893. This judgment
of the Court of Appeal means that parties should not seek to rely on the lower (High Court) judgment
i
n Wychavon DC v SSCLG & Crown House Developments Ltd [2016] EWHC 592 (Admin) to support an
argument that the presumption in favour of sustainable development exists independently of
Framework paragraph 11.
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which carries forward the provisions of former paragraph 14 with minor
modifications. In appeal casework it is not necessary or appropriate,
therefore, to make a separate assessment of whether or not the development
proposal constitutes sustainable development, outside the tests contained in
paragraphs 11(c) and (d)24.
51. If a development proposal conflicts with an up-to-date development plan and
where none of the provisions in Framework paragraph 11 d) and footnote 7
apply, it cannot benefit from the presumption in favour of sustainable
development. But planning permission may nonetheless be granted for it, if
other material considerations indicate that the decision should be made
otherwise than in accordance with the plan25. Whether or not this is the case
is a matter of planning judgment.
52. In order to apply paragraph 11 correctly, it is important to be careful about
the use of the term “sustainable development” when defining your main
issues. For example, when considering proximity and access to shops and
services it would be good practice to define the issue along the following
lines: “whether occupants of the proposed development would have adequate
access to shops and services” (rather than by reference to “sustainable
development”, “sustainable location” or “a sustainable form of development”).
The final section 38(6) balance
53. Applications for planning permission must be determined in accordance with
the development plan unless material considerations indicate otherwise, in
accordance with section 38(6) of the
Planning and Compulsory Purchase Act
(2004). The Framework is only one such material consideration and even
where its paragraph 11 applies, it remains necessary to reach a final
conclusion against section 38(6).
54. Assuming you have concluded in Step 1 of your decision that the development
proposal conflicts with the development plan as a whole26, you will therefore
need to consider explicitly whether the outcome of the Framework paragraph
11 d) process indicates that your decision should be taken otherwise than in
accordance with the development plan. That will not be the case if the
outcome of the paragraph 11 d) process indicates that permission should be
24 Se
e Cheshire East BC v SSCLG [2016] EWHC 571(Admin), paras 20-24, in which Jay J
said “In my judgment, this is not, and cannot be, a question of assessing whether the
proposal amounts to sustainable development before applying the presumption within paragraph 14.
This is not what paragraph 14 says, and in my view would be unworkable. Rather, paragraph 14
teaches decision makers how to decide whether the proposal, if approved, would constitute
sustainable development.”
25 See Framework paragraph 12 and
Barwood Strategic Land v East Staffordshire BC and SSCLG
[2017] EWCA Civ 893, which confirmed the judgment in
East Staffordshire BC v SSCLG and Barwood
Strategic Land [2016] EWHC 2973, and als
o Trustees of the Barker Mill Estates and Test Valley BC &
SSCLG [2016] EWHC 3028(Admin). Parties may seek to rely on the earlier judgment in
Reigate &
Banstead BC v SSCLG & Amtrose Ltd [2017] EWHC 1562 (Admin) as authority for the proposition that
there is only scope for an overall assessment of the sustainability of a proposal in cases where
paragraph 14 applies. However, Lang J’s reference to this in paragraph 22(ix) of the
Reigate
judgment does not reflect other judicial authorities, including
Barker Mills to which she refers.
26 See paragraph 30 above. Note that if there are no relevant development plan policies you will not
have been able to reach such a conclusion.
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refused. But if the outcome of that process indicates that the development
proposal benefits from the presumption in favour of sustainable development,
that may well be a material consideration of sufficient weight to indicate that
planning permission should be granted notwithstanding the conflict with the
development plan. That is a matter for your planning judgment.
55. Note that in the
Barwood Strategic Land v East Staffordshire judgment the
Court of Appeal also made it clear that the presumption in favour of
sustainable development is not a statutory presumption and that it is not
irrebuttable. When the section 38(6) duty is lawfully performed, a
development which does have the benefit of the “tilted balance” may still be
found unacceptable, and equally a development which does not have the
benefit of the “tilted balance” and cannot earn the presumption in favour of
sustainable development may still merit the grant of planning permission.
Again, this is a matter of planning judgment.
56. You must also consider whether there are any other relevant material
considerations, apart from the Framework, that might indicate that your
decision should be taken otherwise than in accordance with the development
plan. If there are, they must also be weighed in the section 38(6) balance.
57. Your final conclusion against section 38(6) will therefore be either that the
decision should be taken in accordance with the development plan, or that
material considerations indicate that the decision should be taken otherwise
than in accordance with it. That conclusion will determine the outcome of the
appeal.
Assessing whether or not a five-year housing land supply exists, in
accordance with Framework paragraph 73, and the extent of any
shortfall in supply
58. This section of the
Housing chapter provides guidance on assessing whether
or not the LPA can demonstrate a five-year supply of housing land (5YHLS).
Assessing this will be necessary where the existence or otherwise of a 5YHLS,
and/or the extent of any shortfall in that supply, is material to your decision
(see
paragraphs 19-23 above). It is likely that you will encounter such issues
in smaller cases as well as larger ones.
59. The Revised Framework provides guidance on this topic. Furthermore, the
PPG chapters o
n Housing need assessment and
Housing and economic land
availability assessment have been revised. These provide details on
calculating housing need via the standard method, five year land supply and
the HDT.
60. The PPG chapter
Housing need assessment also contains this statement:
“A number of responses to this question provided comment on the proposed
local housing need method. The government is aware that lower than
previously forecast population projections have an impact on the outputs
associated with the method. Specifically it is noted that the revised
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projections are likely to result in the minimum need numbers generated by
the method being subject to a significant reduction, once the relevant
household projection figures are released in September 2018.
In the
housing white paper the government was clear that reforms set out
(which included the introduction of a standard method for assessing housing
need) should lead to more homes being built. In order to ensure that the
outputs associated with the method are consistent with this, we will consider
adjusting the method after the household projections are released in
September 201827. We will consult on the specific details of any change at
that time.
It should be noted that the intention is to consider adjusting the method to
ensure that the starting point in the planmaking process is consistent in
aggregate with the proposals i
n Planning for the right homes in the right
places consultation and continues to be consistent with ensuring that
300,000 homes are built per year by the mid 2020s.”
61. The process of assessing whether a five year housing land supply exists
essentially consists of establishing on the one hand the
requirement for
housing land over the relevant five-year period (henceforth “the 5YHLS
requirement” for short), and on the other the
supply of deliverable sites to
meet that requirement. To avoid ambiguity, it is good practice to use the
terms “requirement” and “supply” consistently with these meanings. You
should ensure that you and the parties are clear which five-year period is
being assessed – usually it will begin with the current or the next monitoring
year (a monitoring year usually runs from each April to the following March).
62. Paragraph 74 of the Framework provides LPAs with specific means by which a
5YHLS can be demonstrated (see paragraphs 65-69 below). The rest of this
section (paragraphs 70-84) provides guidance on assessing whether a 5YHLS
exists in cases where this has not been established in accordance with
paragraph 74.
63. Be aware that any conclusion you reach on the existence or otherwise of a
5YHLS may be cited as evidence in subsequent appeals in the same local
authority area. However, caselaw has made it clear that an Inspector at a
section 78 appeal is not “making an authoritative assessment which binds the
local planning authority in other cases
” 28.
64. Where you find there is less than a 5YHLS, there is no need to go on and
comment about what the position might have been had there been a 5YHLS.
65.
Annex 1 contains a useful flow-chart to assist in identifying whether a 5YHLS
exists.
27 A technical consultatio
n Changes to planning policy and guidance including the standard method for
assessing local housing need was launched on 26 October 2018.
28
Shropshire Council v SSCLG and BDW Trading Ltd [2016] EWHC 2733 (Admin), para 30.
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Demonstrating a 5YHLS in accordance with Framework paragraph 74
66. Framework paragraph 74 says that a 5YHLS can be demonstrated in either of
the following circumstances:
•
The 5YHLS has been established in a recently adopted plan; or
•
The 5YHLS has been established in a subsequent annual position
statement which has produced through engagement with stakeholders,
has been considered by the SoS, and incorporates any recommendations
made by the SoS.
67. Note that if the LPA wishes to use either provision of paragraph 74 to
demonstrate that it has a 5YHLS, the 5YHLS requirement must include a
minimum 10% buffer. This is made clear in Framework paragraph 73 b). A
20% buffer will be required if there has been significant under delivery of
housing in the previous three years even if the plan has been “recently
adopted or even if there is an annual position statement”29.
68. For the purposes of paragraph 74, plans adopted between 1 May and 31
October in one year will be considered “recently adopted” until 31 October of
the following year, and plans adopted between 1 November in one year and
30 April in the following year will be considered “recently-adopted” until 31
October in the same year. In other words, a plan adopted in December 2018
will be “recently adopted” until 31 October 2019. These timings reflect the
fact that the HDT results are published in November each year (see
paragraphs 27-29 above).
69. Annual position statements, as referenced in paragraph 74, are not obligatory
but LPAs may choose to prepare them if they want to establish that they can
demonstrate a 5YHLS. They are examined by PINS on behalf of the SoS and
LPAs must make any modifications to them that PINS recommends. Further
details about this are the PPG30.
70. Provided all the relevant requirements of Framework paragraph 74 are met, a
recently adopted plan or an up-to-date annual position statement will
conclusively demonstrate that the LPA has a 5YHLS. In these circumstances
there will be no need to investigate the matter further.
What is the 5YHLS requirement figure?
71. Framework paragraph 73 says:
Local planning authorities should identify and update annually a supply of
specific deliverable sites sufficient to provide a minimum of five years’ worth
of housing against their housing requirement set out in adopted strategic
policies, or against their local housing need31 where the strategic policies are
29 PPG ID:3-049-20180913
30
PPG ID:3-050-054-20180913
31 As defined in the Framework Annex 2 Glossary
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more than five years old unless the strategic policies have been reviewed and
found not to require updating (Framework footnote 37). The supply of
specific deliverable sites should in addition include a buffer (moved forward
from later in the plan period) of:
a)
5% to ensure choice and competition in the market for land; or
b)
10% where the local planning authority wishes to demonstrate a five
year supply of deliverable sites through an annual position statement or
recently adopted plan, to account for any fluctuations in the market
during that year; or
c)
20% where there has been significant under delivery of housing over the
previous three years, to improve the prospect of achieving the planned
supply. Framework footnote 39 confirms that from November 2018 this
will be measured against the HDT where this indicates that delivery was
below 85% of the housing requirement.
72. From this it can be seen that the approach to setting the 5YHLS requirement
will depend on whether or not the strategic policies that set out the LPA’s
housing requirement figure for the plan period as a whole are more than five
years old. If those policies are five years old or less, the housing requirement
figure they contain will form the basis for calculating the 5YHLS – see
paragraphs 73-77 below. (This approach will also apply if those policies are
more than five years old but have been reviewed by the LPA and found not to
need updating – Framework footnote 37.) If, on the other hand, those
policies are more than five years old, the 5YHLS requirement will be based on
the figure set by the local housing need assessment for the LPA area - see
paragraph 78 below. The PPG confirms that there are exceptions where the
strategic policy-making authorities do not align with local authority boundaries
such as National Parks and the Broads Authority. These authorities may
continue to use a method determined locally32.
73. In order to establish the 5YHLS requirement figure, it is necessary first to
work out how much housing is required to be provided in the relevant five-
year period, and then to determine whether a 5% or 20% buffer should be
applied33. To avoid the danger of errors, you should aim to avoid the need to
calculate the 5YHLS requirement figure, or any other figures, yourself.
Instead it is advisable, wherever possible, to ask the parties to make any
necessary calculations and to agree them between themselves as far as is
possible.
Calculating the 5YHLS figure based on plan policies
74. In plan policies, the housing requirement is usually expressed as an average
number of dwellings that should be developed in each year of the plan period.
But it is important to be aware that in some cases the annual requirement
varies throughout the plan period – this is sometimes referred to as a
32
PPG ID: 2a-013-20180913
33 A 10% buffer is required only if the LPA are seeking to establish the 5YHLS using the method set
out in Framework paragraph 74.
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“stepped requirement” or “stepped trajectory”. Any such variation or
“stepping” in the annual requirement figure should be set out in the plan
policies and you should take account of it when calculating the 5YHLS
requirement figure for any given five-year period34.
75. If the housing requirement figure in the plan policies is set out as a range, the
lower end of the range should be taken as the basis for calculating the 5YHLS
requirement figure35
76. If there has been any shortfall in housing provision since the start of the plan
period, this should also be taken into account when calculating the 5YHLS
requirement figure. The PPG36 makes clear reference to shortfalls in
completions against planned requirements which should be calculated from
the base date of the adopted plan. Furthermore, the PPG advises that the
shortfall should be added to the plan requirement for the next five-year
period. Dealing with past under delivery over a longer period may be made
as part of the plan-making and examination period rather than on a case by
case basis on appeal.
77. Plan policies establish the full housing requirement from the plan’s start date.
It would not be appropriate therefore to add any under-supply (or “backlog”)
from before the start date of the local plan to the 5YHLS requirement,
because it will already have been taken into account in setting the
requirement for the plan period.
78. You may find that the terms “under-supply”, “shortfall” and “backlog” are
used interchangeably by the parties. The key distinction is between any
under-supply occurring before the plan’s start date and any occurring after it.
If the terminology is unclear, seek clarification.
Calculating the 5YHLS based on the local housing need assessment
79. If the plan policies which set out the housing requirement for the plan period
are more than five years old, and a review has not found that they do not
need updating, the 5YHLS requirement will be based on the local housing
need assessment for the plan area. The local housing need assessment uses
a standard method set out in the PPG on
Housing need assessment. The
method gives an annual average requirement which will provide the basis for
calculating the 5YHLS requirement. In essence this takes a baseline of
national household projections and applies an adjustment to take account of
affordability based on the most recent workplace-based affordability ratios.
Any increase is capped at 40% above the existing annual average housing
requirement figure. As it is based on known data from specific sources and
an exact formula there should be less scope for disagreement about the final
figure than previously.
34
PPG ID:3-033-20180913
35
PPG ID:3-035-20180913
36
PPG ID:3-044-20180913
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Should the buffer be 5% or 20%?
80. Paragraph 73 of the Framework requires that an additional buffer of 5% is
included in the 5YHLS requirement, to ensure choice and competition in the
market for land. This additional buffer is moved forward from later in the plan
period (and so it does not constitute an addition to the housing requirement
for the plan period as a whole).
81. However, a buffer of 20% (also moved forward from later in the plan period)
should be added where there has been “significant under delivery of housing
over the previous three years”. Framework footnote 39 makes it clear that
from November 2018, a 20% buffer will be required if delivery has been less
than 85% of the requirement over the past three years, as measured by the
HDT.
Which sites can be included in the five-year supply?
82. In order for housing sites to be included in the five-year supply, paragraph 73
of the Framework requires them to be deliverable. The Framework’s Glossary
defines “deliverable” as follows:
To be considered deliverable, sites for housing 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. Sites that
are not major development, and sites with detailed planning permission,
should be considered deliverable until permission expires, unless there is clear
evidence that homes will not be delivered within five years (e.g. they are no
longer viable, there is no longer a demand for the type of units or sites have
long term phasing plans). Sites with outline planning permission, permission
in principle, allocated in the development plan or identified on a brownfield
register should only be considered deliverable where there is clear evidence
that housing completions will begin on site within five years.
83. The PPG chapter
Housing and economic land availability assessment37 gives
advice on what might constitute the “clear evidence” referred to in the
Framework for the 4 types of sites referred to above.
84.
Annex 3 to this chapter sets this out and includes some other considerations
that may apply when determining whether sites are deliverable.
85. You may be faced with widely-diverging assessments from the LPA and the
appellant of the amount of housing that is likely to be provided during the
relevant five-year period. Where circumstances permit, it is usually helpful to
try to narrow the differences between them as far as possible by asking them
to agree a statement of common ground.
86. LPAs sometimes apply a general “non-implementation” or “lapse” rate to the
sites in their 5YHLS, to reflect the fact that some sites may not come forward
as planned. In other cases, appellants may suggest that such a rate should
37
PPG ID: 3-036-20180913
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be applied. It is referred to in the PPG in the context of the preparation of an
annual position statement38 You will need to assess the appropriateness of
any suggested rate having regard to the available evidence, including any
evidence on actual non-implementation rates in the past. Beware, however,
that where you have reached a specific conclusion on the number of dwellings
likely to come forward on an individual site, it is unlikely to be appropriate
then to apply a general non-implementation or lapse rate to that site39.
Prematurity
87. It may be argued that a development proposal would be premature because it
would undermine the plan-making process. Consider any such arguments
against the advice in the PPG which answers the question
In what
circumstances might it be justifiable to refuse planning permission on the
grounds of prematurity40
?
Affordable housing
Background
88. The Glossary to the Framework provides a definition of affordable housing,
which includes affordable housing for rent, starter homes, discounted market
sales and other affordable routes to home ownership. These are different to
the 2012 Framework which previously excluded low cost market housing. If
development plan policies are based on the 2012 definition then it may be
necessary to consider whether those policies are consistent with the revised
Framework or out-of-date and the weight to be given to any conflict with
them (paragraph 213 of the Framework). If there is conflict with existing
policies because of the type of provision proposed then the Framework will be
a material consideration to weigh in the balance. Similar considerations also
apply to other provisions of the Framework set out below as development plan
policies may also not fully accord with them.
89. Although it also contains other references to affordable housing the
Framework provides, in summary, that:
• The need for affordable housing should be assessed and reflected in
planning policies.
[paragraph 61];
• Policies should specify the type of affordable housing required applying the
definitions in the Glossary and expect it to be met on-site unless both of
the specified exceptions applies.
38
PPG ID: 3-047-20180913
39 See the judgment i
n Wokingham Borough Council v SSCLG & Cooper Estates [2017] EWHC 1863
(Admin), which also deals with the danger of “double-counting” when applying a non-implementation
or lapse rate.
40
PPG ID 21b-014-20140306
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[paragraph 62];
• Provision of affordable housing should not be sought for residential
developments that are not major developments (where 10 or more homes
will be provided or where the site area is 0.5 hectares or more according to
the Glossary). In designated rural areas (National Parks, Areas of
Outstanding Natural Beauty and other areas designated under s157 of the
Housing Act 198541 as per the Glossary) the threshold may be set at 5
units or fewer.
[paragraph 63];
• To support the re-use of brownfield land, any affordable housing
contribution should be reduced by a proportionate amount where vacant
buildings are being reused or redeveloped.
[paragraph 63];
• Where major development includes housing at least 10% of the homes
should be available for affordable home ownership unless this would
exceed the level of affordable housing in the area or significantly prejudice
the ability to meet the identified affordable housing needs of specific
groups. There are also further other listed exceptions to the 10%
requirement.
[paragraph 64];
• The development of entry-level exception sites offering one or more types
of affordable housing, as defined in the Glossary, should be supported.
[paragraph 71]; and
• In rural areas opportunities to bring forward rural exception sites to
provide affordable housing to meet identified local needs should be
supported.
[paragraph 77]
90. The Framework also allows for limited affordable housing for local community
needs as an exception to inappropriate development in the Green Belt and
where infilling or redevelopment of previously developed land would
contribute to meeting an identified affordable housing need subject to the
impact on the openness of the Green Belt (paragraph 145 f) and g)).
91. The PPG chapter
Housing need assessment covers the calculation of
affordable housing need and supply as follows and provides further detailed
guidance:
41
The Housing (Right to Buy) (Designated Rural Areas and Designated Regions) (England) Orders
2016 (SI 2016/587) and
2018 (2018/265) have designated specific listed parishes within a number of
regions (Chichester, Malvern Hills, Shropshire, Wychavon, North Kesteven and Stroud) as rural areas
under s157(3) of the 1985 Act.
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How can affordable housing need be calculated42?
How can the current unmet gross need for affordable housing need be
calculated43?
How can the current total affordable housing supply available be calculated44?
92. Many development plans contain a policy requiring affordable housing in
relation to all or some new housing developments. Quite often the policy
accepts that the amount of affordable housing could vary depending on the
financial viability of the development. There may also be a Supplementary
Planning Document which sets out the LPA’s approach in more detail.
93. The Written Ministerial Statement (WMS) of November 2014 dealt with the
matter of thresholds beneath which affordable housing contributions should
not be sought from small scale and self-build development. However, this
statement of national planning policy has now been overtaken by the
threshold specified in paragraph 63 of the Revised Framework. This refers to
not seeking affordable housing provision for residential developments that are
not major developments (less than 10 being provided) rather than 10 or less
as per the WMS.
94. The thresholds in the development plan may not accord with the Framework
and may seek the provision of affordable housing for schemes of less than 10
dwellings. In deciding the weight to be given to the conflict with the relevant
development plan policy Inspectors should give appropriate weight to the
Framework as national policy and have regard to paragraph 213 which
indicates that the date of the policy is not determinative. Otherwise in
deciding whether to determine an appeal other than in accordance with that
policy of the development plan Inspectors should take account of the evidence
put to them. Relevant factors might include when the policy was prepared in
relation to the WMS, consideration given to the issue at a local plan
examination, affordable housing need in the area as an overall proportion and
the amount of development from small sites compared to other areas.
Furthermore, the WMS refers to the “disproportionate burden” of developer
contributions on small-scale developers, custom and self-builders and this
may also be relevant when considering any conflict between the threshold in
the Framework and that in the development plan.
95. The PPG chapter
Planning obligations also contains relevant detailed guidance
in paragraphs 013 to 017, 019 to 023 and 03145, although this has not been
updated following the new Framework and so refers to the WMS. It
nevertheless confirms that the restriction on seeking planning obligation
contributions does not apply to rural exception sites (as defined in the
Glossary to the Framework). Further background is in the ITM chapter on
Planning Obligations.
96. Paragraph 64 of the Framework sets out exceptions to the 10% requirement
for affordable home ownership for major developments (where 10 or more
42
PPG ID: 2a-022-20180913
43
PPG ID: 2a-023-20180913
44
PPG ID: 2a-025-20180913
45
PPG ID: 23b-013-017-20160519, 23b-019-023-20160519 and 23b-031-20160519
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link to page 28
dwellings and sites over 0.5 ha). The list includes specialist accommodation
for groups of people with specific needs such as purpose-built accommodation
for the elderly or students. However, it is important to note that these
provisions relate to affordable home
ownership as opposed to rent.
Inspectors may need to consider whether national policy is a material
consideration that outweighs the provisions of the development plan in terms
of either the type or amount of affordable housing to be provided and whether
the exceptions apply.
97. Detailed guidance on the application of vacant building credit (VBC) is given in
the PPG46 and indicates that national policy provides an incentive for
brownfield development containing vacant buildings. Paragraph 63 and
footnote of the revised Framework do not specifically refer to VBC but set out
the approach to be followed where vacant buildings are reused or
redeveloped.
98. The PPG makes it clear that in considering how VBC should apply to a
particular development, LPAs should have regard to the intention of national
policy to incentivise brownfield development. In doing so, it may be
appropriate to consider whether the building has been made vacant for the
sole purposes of redevelopment, and whether the building is covered by an
extant or recently-expired planning permission for the same or substantially
the same development.
99. There is further guidance about securing affordable housing in the section on
planning obligations and conditions
(paragraphs 104-117 of this chapter).
Casework issues
100. When affordable housing arises in casework consider the following:
• Should affordable housing be a “main issue” or an “other matter”? It is
likely to be a main issue where the LPA contends that affordable housing
should be provided but it is not – or where the LPA considers the provision
being made is not sufficient or is not of the right mix – i.e. if it is a
contested issue. In these circumstances, the appellant may have argued
that the development would not be viable if a specific level of affordable
housing were to be provided.
• If affordable housing is a main issue, could it be defined as:
whether or not
the proposed development would make adequate provision for affordable
housing?
• Should the provision of affordable housing be a factor that is weighed in
favour of the proposal? (This may be argued by, for example, a developer
promoting residential development, including a proportion of affordable
housing, in a location that does not accord with the Local Plan.) Affordable
housing should generally be regarded as a benefit as it would address the
46
PPG paragraphs 23b-021-20160519, 23b-022-20160519, & 23b-023-20160519
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needs of a group with specific housing requirements. This may be
particularly the case if it would help meet an identified and outstanding
need even if the provision of affordable housing is already required by
development plan policy.
• The need for affordable housing will have been comprehensively assessed
in the preparation and examination of the local plan, including in the
setting of the plan’s housing requirement. Where the plan does not seek
to meet the full need for affordable housing, this may be for sound reasons
which have been endorsed by the Local Plan Inspector. Accordingly, if the
proposed development would be in conflict with a recently adopted local
plan, the decision maker should take particular care to establish why it
might be justified to set aside a recently adopted plan in order to provide
more affordable housing.
Choice of appeal procedure
101. Consider whether the case is suitable for the written representations
procedure:
• Is affordable housing likely to be central to your decision?
• Has substantial evidence been provided about viability?
• Have experts reached differing conclusions about viability? If the answer
to these questions is yes, then a hearing or inquiry may be necessary to
allow the evidence to be properly tested.
Viability
102. The Revised Framework says the following about viability at paragraph 57:
Where up-to-date policies have set out the contributions expected from
development, planning applications that comply with them should be assumed
to be viable. It is up to the applicant to demonstrate whether particular
circumstances justify the need for a viability assessment at the application
stage. The weight to be given to a viability assessment is a matter for the
decision maker, having regard to all the circumstances in the case, including
whether the plan and the viability evidence underpinning it is up to date, and
any change in site circumstances since the plan was brought into force. All
viability assessments, including any undertaken at the plan-making stage,
should reflect the recommended approach in national planning guidance,
including standardised inputs, and should be made publicly available.
103. The PPG chapter
Viability gives specific guidance on viability and decision
taking in terms of how it should be assessed and reviewed during the lifetime
of a project47. This should be taken into account if viability is a contested
issue and an assessment is required.
47
PPG ID: 10-(007-009)-20180724
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104. The PPG chapter
Planning obligations pre dates the Revised Framework. It
provides that where affordable housing contributions are being sought
obligations should not prevent development from going forward48. Paragraph
007 of the Planning obligations chapter also details the evidence required to
support negotiations on planning obligations and makes reference to viability.
Planning obligations and conditions
105. In order for affordable housing to be provided effectively, arrangements must
be made to transfer it to an affordable housing provider, to ensure that
appropriate occupancy criteria are defined and enforced, and to ensure that it
remains affordable to first and subsequent occupiers. The legal certainty
provided by a planning obligation (either a section 106 agreement or
unilateral undertaking) makes it the best means of ensuring that these
arrangements are effective.
106. The PPG advises that:
Ensuring that any planning obligation or other agreement is entered into prior
to granting planning permission is the best way to deliver sufficient certainty
for all parties about what is being agreed. It encourages the parties to finalise
the planning obligation or other agreement in a timely manner and is
important in the interests of maintaining transparency49.
107. If the evidence in a given case indicates that affordable housing should be
provided you should, therefore, normally expect that a completed planning
obligation providing the affordable housing is submitted with the appeal, or at
the hearing or inquiry. However, where the parties have been genuinely
unable to complete the planning obligation before a hearing or inquiry closes,
you may allow limited time after the close (a maximum of one or at most two
weeks) for the obligation to be submitted so that you may take it into account
in your decision.
108. There is a detailed checklist for planning obligations in Annex N.8 to the
Procedural Guide – Planning appeals – England
109. In the absence of a planning obligation, it may be possible in limited
circumstances to use a planning condition to secure affordable housing.
However, you should be aware of the advice in the PPG that planning
permission should not be granted subject to a positively-worded condition
that requires the applicant to enter into a planning obligation. The PPG
further advises that:
A negatively worded condition limiting the development that can take place
until a planning obligation or other agreement has been entered into is
unlikely to be appropriate in the majority of cases. […] However, in
exceptional circumstances a negatively worded condition requiring a planning
48
PPG ID 23b-004-20140306
49
PPG ID: 21a-010-20140306
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obligation or other agreement to be entered into before certain development
can commence may be appropriate in the case of more complex and
strategically important development where there is clear evidence that the
delivery of the development would otherwise be at serious risk. In such cases
the 6 tests must also be met.
Where consideration is given to using a negatively worded condition, it is
important that the local planning authority discusses with the applicant before
planning permission is granted the need for a planning obligation or other
agreement and the appropriateness of using a condition. The heads of terms
or principal terms need to be agreed prior to planning permission being
granted to ensure that the test of necessity is met and in the interests of
transparency50.
110. It is a matter of judgement for the decision-maker as whether all these tests
in the PPG are met, so that the use of a condition to secure affordable housing
is appropriate. They are quite specific and only occur in exceptional
circumstances and so the reasoning to support the use of a condition should
address the relevant tests directly.
111. Even if a proposed condition does not explicitly require a legal agreement, but
leaves the method of securing the affordable housing vague, it will be
reasonable to conclude that a legal agreement will be required and that the
PPG tests regarding the use of conditions to secure obligations should still be
applied. This is because the judgment i
n R (on the application of
Skelmersdale Ltd Partnership) v West Lancashire BC [2016] EWCA Civ 1260
confirmed that the interpretation of a condition is based on "what a
reasonable reader would understand the words to mean when reading the
condition in the context of the other conditions and of the consent as a
whole".
112. In particular, i
n Skelmersdale, the phrase "submits a scheme which commits
to retaining their presence as a retailer
" was interpreted as requiring a
legally-binding obligation. Consequently, a condition such as that at Annex 4
to this chapter requiring a scheme to “ensure” that dwellings remain as
affordable housing (or other similar wording) could also be reasonably
interpreted as requiring a legal agreement, and so engage the PPG tests. In
order for it to meet those tests, therefore, you would need to be satisfied,
before imposing the condition, that the proposed development is both
complex and strategically important and that there is clear evidence that the
delivery of the development would otherwise be at serious risk. Furthermore,
that these amount to exceptional circumstances.
113. An example condition that could be used where the PPG’s exceptional
circumstances are met is set out i
n Annex 4. Before the condition is applied,
the numbered points in it should be expanded to include relevant details that
have been provided as heads of terms, and in particular to set out the
mechanism by which the housing will be secured as affordable. This is
necessary in order to meet the PPG requirement that
the heads of terms or
principal terms need to be agreed prior to planning permission being granted
50
PPG ID: 21a-010-20140306
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to ensure that the test of necessity is met and in the interests of transparency (see above)
.
114. For example, the condition might need to set out the overall percentage of
affordable housing, the respective percentages of social and affordable rented
and shared ownership housing, the phasing arrangements – linking delivery of
affordable housing to specified stages in the commencement or occupation of
the market housing – and arrangements for involvement of a registered social
landlord. The level of detail required will be for you to determine, having
regard to the PPG guidance on necessity and transparency.
115. If you are presented with a condition to which the PPG “exceptional
circumstances” tests apply, but those tests are not met, it is unlikely that the
use of the
Annex 4 condition – or any other condition requiring a legal
agreement – to secure affordable housing would be appropriate. In the
absence of an alternative means (such as a completed planning obligation) of
securing affordable housing which is required as part of the development, it
may be that the appeal would have to be dismissed. This is not automatic but
will depend on the level of harm caused by any shortfall in affordable housing,
the development plan conflict and other material considerations.
116. If you are presented with a condition setting out a method of securing the
affordable housing and you are satisfied that it does not require a legal
agreement notwithstanding the
Skelmersdale judgment, the PPG tests will not
apply. However, the condition should be very carefully scrutinised to ensure
that it will be effective in securing affordable housing. If there is any doubt
on this matter you will need to consider whether – in the absence of a
planning obligation – the appeal should be dismissed.
117. In hearing or inquiry cases where it appears to you that there will need to be
discussion over the means of securing affordable housing and their
compliance with guidance in the PPG, it is good practice to draw the parties’
attention to the PPG in advance and give them advance notice of the
questions that you will need to ask.
118. There have been a considerable number of past appeal decisions, including by
the Secretary of State, in which conditions have been used to secure
affordable housing even though the PPG “exceptional circumstances” tests
have not been met. Many of those decisions, however, pre-date the PPG
and/or the
Skelmersdale judgment. In any event, whatever may have been
done elsewhere, it is for you to satisfy yourself that, in cases where affordable
housing is required, it is capable of being delivered by the method that is
proposed.
Starter Homes
119. On 2 March 2015, the Government introduced a new national starter homes
exception site planning policy through a
Written Ministerial Statement to
provide more discounted, high quality homes for young first time buyers
without burdening the tax payer. Chapter 1 of the
Housing and Planning Act
2016 sets out various provisions relating to starter homes including a general
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duty to promote the supply of starter homes. There is a definition in section 2
that a starter home is a building or part of a building that:
(a) is a new dwelling,
(b) is available for purchase by qualifying first-time buyers only,
(c) is to be sold at a discount of at least 20% of the market value,
(d) is to be sold for less than the price cap, and
(e) is subject to any restrictions on sale or letting specified in regulations
made by the Secretary of State.
120. Starter homes are included within the definition of affordable housing in the
Glossary to the Framework. This confirms that the definition of a starter
home should reflect the meaning set out in statute and any such secondary
legislation at the time of plan-preparation or decision-making. Where
secondary legislation has the effect of limiting a household’s eligibility to
purchase a starter home to those with a particular maximum level of
household income, those restrictions should be used.
121. Furthermore, paragraph 71 of the Framework indicates that development of
entry-level exception sites, suitable for first time buyers should be supported,
unless the need for such homes is already being met. Further parameters for
such development are also given.
122. The National Starter Homes Register, managed by the Home Builders
Federation allowing first time buyers to register their interest in the scheme,
provides a valuable source of information about potential demand for starter
homes and identifying who may be eligible for starter homes developments.
Local planning authorities can use this as evidence when developing their
Local Plan and associated documents. However, consultation on proposed
Starter Homes Regulations took place in 2016 but the Regulations are not yet
in force. Therefore, local plans are unlikely to contain policies setting detailed
requirements for starter homes. But such provision may be made in future
given that starter homes are now within the definition of affordable housing in
the Framework.
123. Further advice on the delivery of starter homes is contained in the PPG
chapte
r Starter Homes.
124. The exception site policy referred to in the PPG enables applications for
development for starter homes on under-used or unviable industrial and
commercial land that has not been currently identified for housing. Suitable
sites are likely to be under-used or no longer viable for commercial or
industrial purposes, but with remediation and infrastructure costs that are not
too great so as to render Starter Homes financially unviable. The PPG also
encourages local planning authorities not to seek section 106 affordable
housing and tariff-style contributions that would otherwise apply.
125. It indicates that the types and sizes of site suitable for Starter Homes are
likely to vary across the country, and will reflect the pattern of existing and
former industrial and commercial use as well as local market conditions. Land
in both public and private ownership can be considered.
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126. The guidance states that where applications for starter homes come forward
on such exception sites, they should be approved unless the local planning
authority can demonstrate that there are overriding conflicts with the
Framework that cannot be mitigated.
127. Local planning authorities should work with landowners and developers to
secure a supply of starter homes exception sites suitable for housing for first
time buyers. As such homes will come forward as windfall sites, local planning
authorities should not make an allowance for them in their five year housing
land supply until such time as they have compelling evidence that they will
consistently become available in the local area. Local planning authorities can
count starter homes against their housing requirement and can use their
discretion to include a small proportion of market homes on starter homes
exception sites where it is necessary for the financial
viability of the site. The
market homes on the site will attract section 106 or
Community Infrastructure
Levy contributions in the usual way.
Self-build and custom housebuilding
Background
128. The Government is actively seeking to increase the supply of custom- and
self-build housing51. In October 2014 the Government published a
consultation on various measures (including a ‘Right to Build’) to improve the
availability of suitable, serviced plots of land for custom-build. This led to the
Self-Build and Custom Housebuilding Act 2015 which received Royal Assent in
March 2015. The Act requires local planning authorities to establish local
registers of custom-builders who wish to acquire suitable land to build their
own home. It also requires local authorities to have regard to their local
register when exercising their planning and other relevant functions. The
detailed requirements are set out in the
Self-build and Custom Housebuilding
Regulations 2016 (SI 2016/950).
129. The
Housing and Planning Act of 2016 added a duty to grant planning
permission subject to exemptions at S2A. This provides that authorities must
give suitable development permission in respect of enough serviced plots of
land to meet the demand for self-build and custom housebuilding in the
authority's area arising in each base period. However, there is scope for an
exemption under S2B of the 2016 Act which may be applied for under
Regulation 11.
130. There is further guidance in the PPG chapter
Self-build and custom
housebuilding including how relevant authorities can increase the number of
planning permissions which are suitable for self-build and custom
housebuilding. It also indicates that at the end of each base period
authorities have 3 years to give permission to an equivalent number of plots
51 Custom-build housing typically involves individuals or groups of individuals commissioning the
construction of a new home or homes from a builder, contractor or package company or, in a modest
number of cases, physically building a house for themselves or working with sub-contractors. This
latter form of development is also known as “self-build” (i.e. custom-build encompasses self-build).
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of land and this provision will take effect from October 2019. The PPG
chapter Housing need assessment also provides advice about how local
planning authorities should obtain a robust assessment of demand for this
type of housing in their areas52.
Issues in casework
131. Depending on the circumstances of the case, including any relevant
development plan policies, it may be necessary for planning permission to
incorporate some means of ensuring that custom-/self-build proposals are
constructed in this manner. As it is not clear how certain matters relating to
self-build (e.g. CIL exemption and ownership for a period of 3 years) could be
secured through a planning condition, a section 106 obligation is likely to the
most appropriate method to secure these. This would also bind the
requirement to successors in title (should the property be sold in the future).
If insufficient permissions have been given to meet demand in accordance
with the statutory duty then this may be cited as a material consideration in
favour of granting permission.
Development of garden land and density
National planning policy
132. The revised Framework states that:
• “land in built-up areas such as private residential gardens” is excluded
from the definition of previously developed land in the Glossary53
• Plans should consider the case for setting out policies to resist
inappropriate development of residential gardens, for example where
development would cause harm to the local area
[paragraph 70]
• Planning decisions should support development that makes efficient use of
land, taking into account (amongst other things) the desirability of
maintaining an area’s prevailing character and setting (including residential
gardens)
[paragraph 122]
• Under the heading of achieving appropriate densities and where there is an
existing or anticipated shortage of land for meeting identified housing
needs, it is especially important that planning decisions avoid homes being
built at low densities and ensure that developments makes optimal use of
the potential of each site
52
PPG ID: 2a-020-20180913
53
Dartford BC v SSCLG [2016] EWHC 635 (Admin) confirmed that this does not extend to private
residential gardens that are not located in built up-areas, e.g. in open countryside.
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[paragraph 123]
• LPAs should refuse applications which they consider fail to make efficient
use of land, taking into account the policies in the Framework
[paragraph 123]
• A flexible approach should be taken in applying policies or guidance
relating to daylight and sunlight which would otherwise inhibit the efficient
use of a site as long as acceptable living standards would result
[paragraph 123]
Casework issues
133. A significant proportion of appeal cases involve proposals to develop garden
land. Such proposals often give rise to local concerns about the effect on the
character and appearance of the area, the living conditions of neighbours,
parking and highway safety. Consideration should be given to the arguments
raised by the parties as well as relevant development plan policies and any
Supplementary Planning Documents or Guidance.
134. If the effect on character and appearance is an issue you will need to assess
the contribution that the garden currently makes before moving on to look at
the potential effects on the streetscene and/or the wider character and
appearance of the area. Depending on the circumstances and the evidence
provided - consider:
• Would the proposed development fit in locally? How would it compare in
terms of plot sizes, the width of road frontages and density?
• How would it compare in terms of distances between buildings and the
spatial relationships between houses?
• How would it compare in terms of spaciousness?
• Would it affect the extent and nature of garden planting?
• Would it comply with the Framework guidance on achieving well-designed
places in section 12 (paragraphs 124 – 132)?
135. In some cases you may be referred to examples where the development of
garden land has previously been permitted in the surrounding area. Look
carefully at the evidence. Questions to consider might include:
• How similar are the proposals and the circumstances? (if you have
evidence on this)
• Do the examples provide a local context for the appeal proposal or help
define the character of the area?
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• Have such examples added to or detracted from the character and
appearance of the area?
• Have there been any material changes in circumstances, including in
respect of policy?
Development plan policy
136. As ever, the starting point for decision-making will be any relevant policies in
the development plan. In particular:
• Are the policies consistent with the revised Framework?
• Does the policy specifically refer to gardens and/or previously developed
land? If so, does a policy which prioritises the development of previously
developed land or which precludes the development of greenfield sites
offer any support in principle to the development of garden land?
• Does the policy accept the development of unallocated land within
settlements regardless of whether or not it is previously developed? If so,
does it continue to offer support, in principle, to the development of garden
land?
137. Some older development plans may pre-date the 2012 Framework and
include reference to definitions under
Planning Policy Statement 3: Housing. Any such policies are now likely to be out-of-date although any such
judgement should be based on the provisions of paragraph 213 of the revised
Framework. Paragraph 70 of the revised Framework is, however, largely
unchanged from the previous version (paragraph 53) in relation to residential
gardens. Nevertheless, it does not in itself, resist inappropriate development
of residential gardens but rather indicates that LPAs should consider the
matter for themselves. Paragraphs 122 and 123 of the revised Framework
aim to achieve appropriate densities and are more specific than paragraph 47
of the 2012 Framework which referred to LPAs setting out their own approach
to housing density to reflect local circumstances. These paragraphs will be
important material considerations.
Definitions
138. The Framework definition of previously developed land explicitly excludes
“land in built-up areas such as private residential gardens”. See the
Dartford
judgment at footnote 14 which confirmed that this does not apply to private
residential gardens in open countryside. A definition of “built-up” is not
included in the Framework although “built-up areas” are not synonymous with
urban areas and may be found in rural locations if there is development
around the site or within the wider area. It will be for you to determine
whether a site falls within the Framework definition of previously developed
land based on the facts and circumstances of the particular case. This will
include whether or not the area is “built-up”, if the site should be regarded as
a “private residential garden” and if the relevant part of the site is developed
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or not. However, if these matters are not central to the outcome of the
appeal then it may not be necessary to reach a firm conclusion on this point.
Housing in the countryside and villages
National policy and guidance
139. Rural housing is covered at paragraphs 77 to 79 of the Revised Framework.
In summary, planning decisions should be responsive to local circumstances
in rural areas, support opportunities to bring forward rural exceptions sites,
locate housing where it will enhance or maintain the vitality of rural
communities and avoid the development of isolated homes in the countryside
unless one of the five listed circumstances applies. According to the Court of
Appeal i
n Braintree DC v SSCLG, Greyread Ltd & Granville Developments Ltd
[2018] EWCA Civ 610 “…the word “isolated” in the phrase “isolated homes in
the countryside” simply connotes a dwelling that is physically separate or
remote from a settlement. Whether a proposed new dwelling is, or is not,
“isolated” in this sense will be a matter of fact and planning judgment for the
decision-maker in the particular circumstances of the case in hand”
(paragraph 31). However, paragraph 79 does not imply that a dwelling has to
be “isolated” in order for restrictive policies to apply and there may be other
circumstances when development in the countryside should be avoided. So a
proposed development may not be “isolated” as defined but this does not
mean that it will accord with development plan policies that seek to prevent
the location of new housing outside of settlements.
140. Further guidance is within the PPG chapter
Rural housing although this pre-
dates the revised Framework and simply addresses the question of how local
authorities should support sustainable rural communities.
Development plans
141. You may need to consider whether or not the development plan policies can
reasonably be regarded as consistent with the revised Framework. Are they
distinctive local policies that promote sustainable development? Plan policies
may also identify which rural settlements are appropriate to receive housing
development, and at what scale. Provided they are supported by appropriate
and robust evidence, such policies need not necessarily be inconsistent just
because they adopt a particular approach (such as the use of settlement
boundaries or development limits) which is not specifically referred to in the
Framework or the PPG. In particular, there is nothing in the revised
Framework to indicate that the definition of settlement boundaries is no
longer a suitable policy response and therefore that such policies are bound to
be out-of-date having regard to paragraph 213.
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Casework
142. Common concerns expressed by LPAs are that new housing would be located
outside existing settlements and would conflict with development plan policy
regarding development in the countryside. This often arises in cases where
the appeal site is located at or near the edge of a settlement - whether or not
defined by a settlement boundary.
143. Depending on the cases advanced by the parties - questions to consider could
include:
• What is the underlying concern behind the reason for refusal? What are
the objectives of the relevant development plan policies? For example, is
the aim of policy to protect the character and appearance of the
countryside and rural settlements, to ensure that car-reliant development
is avoided or to focus development where it would support the vitality of
settlements? Do any of those issues arise in your case?
• What is the relationship between the site and the settlement – visually,
physically and functionally? What is the relationship between the site and
open countryside surrounding the settlement? Is the site more closely
related to the settlement or to the surrounding countryside?
• Is there evidence that the proposal would enhance or maintain the vitality
of rural communities? Are there existing services, such as a shop, pub or
school, in the settlement or in a nearby village, which residents of the new
housing could reasonably be expected to use and thereby support?
• Would occupants be reliant on the use of a car? What options would there
be to travel without using a car? What services are there within walking
distance? Would they meet some everyday needs? Would the walk feel
safe to users? Is there a bus service? Where does it go and how often?
What about options for cycling?
144. In considering the issues in this last bullet point, paragraph 103 of the
Revised Framework provides that opportunities to maximise sustainable
transport solutions will vary from urban to rural areas and that this should be
taken into account in decision-making.
145. Evidently you would not expect the same level of bus service, for example, in
a village as in an urban area. It will be a matter for your judgment in each
case whether there are realistic alternatives to the car for any of the journeys
that future residents of the development are likely to make. Even if there are
no evening bus services, for example, it may be possible to travel to and from
the nearest town by bus for work or shopping. In cases where there are few
or no alternatives to the car, you will need to consider the extent of any
negative consequences, for example in terms of increased traffic levels or
isolation for those without a car. However, locational considerations should
encompass a range of relevant matters as outlined in paragraph 57 above and
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not be solely focussed on the likelihood of future occupiers being able to
access services and facilities by means other than the car.
146. It will also be important to bear in mind that conflict between a proposal and
a development plan policy or policies that seek to achieve a particular
distribution of development across an LPA area is also likely to result in harm
in achieving the planned strategy. Even if the proposed development is
visually acceptable then this aspect of the scheme should be conspicuously
identified and weighed in the overall balance. See High Court judgment in
East Staffordshire BC v SSCLG and Barwood Strategic Land [2016] EWHC
2973 (Admin)54.
Housing for rural workers
Background
147. The revised Framework allows for isolated homes in the countryside where
there is an essential need for a rural worker, including those taking majority
control of a farm business, to live permanently at or near their place of work
in the countryside (paragraph 79).
148. The 2012 Framework replaced the detailed policy on agricultural, forestry and
other occupational dwellings which was previously in Annex A to
Planning
Policy Statement 7: Sustainable Development in Rural Areas. This set out
functional and financial tests for permanent and temporary dwellings. The
criteria previously set out in Annex A no longer have any status as national
planning policy but they are nonetheless retained in some development plans.
There is nothing in the Revised Framework to preclude LPAs from devising
local policies setting out how the question of “essential need” is to be judged
although there is no longer any national policy requirement relating to
financial considerations. Nevertheless there may be a need to consider the
degree to which relevant policies are consistent with the revised Framework.
Issues in casework
149. Your framing of the main issue will depend on the circumstances of the case.
However, having regard to the Framework, the following examples might be
useful:
• whether there is an essential need for a dwelling to accommodate a rural
worker
54 The
Court of Appeal ([2017] EWCA Civ 893) subsequently concurred with this judgment in relation
to the presumption in favour of sustainable development. But the High Court judge’s comments are
nonetheless pertinent and were not contradicted “But he [the Inspector] needed to address the
“
cons” inherent in his acceptance that the Proposed Development collided with these policies and did
not generate exceptional benefits, in some appropriate and reasoned manner. As to the level of detail
required this will be case specific and will take into account the arguments advanced. One indication
of the level of detail required would be whether the Inspector has addressed the “
cons” in a level of
detail which is commensurate or proportionate with that with which he has addressed the “
pros”
(paragraph 52).
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• whether, having regard to national planning policy that seeks to avoid
isolated new homes in the countryside, there is an essential need for a
rural worker to live permanently at or near their place of work
150. Appeals casework can often focus on one or both of the following
questions:
• Is it necessary for a worker to live at or near their place of work in order
for that work/enterprise to function properly?
• Is the work/enterprise in question likely to endure in the long term? (ie is
there a significant risk that the enterprise might cease in the near future,
leaving behind a new dwelling that would not otherwise have been
approved?)
151. Depending on the cases put by the parties, you may need to consider the
following:
• Does a worker need to be on or near the site at most times, including
during the night – ie outside regular hours of work? Have other measures
been considered (eg automatic alarms in the event of power failure)?
Would they be effective?
• What adverse effects might arise if a worker were not present at most
times? How serious might these effects be? Could they materially affect
the functioning of the enterprise or the viability of the business?
• If there is a need to be on site, does this require a worker to be present all
year round or only at specific times of the year? If a need to be present at
most times of the day is seasonal, could this requirement be
accommodated without providing a dwelling? For example by providing
temporary overnight facilities in an existing building?
• If a worker does need to live at or near the site, is there any existing
accommodation on the site, on the holding or in the area that might
reasonably meet that need?
• What evidence is there that the work/enterprise is likely to endure in the
long term? How long has it been carried out for? What investments have
been made in the enterprise? Has it been profitable?
• If the work/enterprise has not yet been established – what evidence is
there that it will be established and that it is likely to be sustained over
time?
• Would the dwelling be of a size which is appropriate to the essential need
or would it be unnecessarily large? If allowing the appeal, is it necessary
to restrict permitted development rights by condition?
• If the enterprise is new or has not yet been established – would it be
appropriate to provide temporary accommodation for an initial period (eg
in a static caravan or mobile home)? If so, for how long?
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152. Appellants will often submit detailed evidence about the viability of an
enterprise in order to demonstrate that it will be likely to endure. This might
include accounts showing income/expenditure and profit/loss in recent years
and/or business plans forecasting future performance. There is no one
standard formula for assessing viability and you will need to consider each
case on its merits looking carefully at the cases of each party. However, you
may need to consider:
• Have all the costs of establishing (if relevant), running and maintaining the
enterprise been taken into account and justified (for example, land,
buildings, stock, feed, vets, power & utilities, maintenance, repairs,
transport, marketing, insurance, wages, financing)?
• What income is (or would be) generated? Have allowances been made for
wages? Are predictions realistic and justified?
153. Evidence about costs and income will often be based on industry standard
reference books such as the
John Nix Farm Management Pocketbook55 or the
Agricultural Budgeting and Costing Book. Have up to date versions been
used? Some appellants will argue that they are prepared to accept an income
that is less than the minimum agricultural wage. This is a material
consideration but determining such matters against an objective standard will
lead to more consistent decision-making and accords with the principle that
planning permission runs with the land.
Green Belt
154. Framework paragraph 145 states that new buildings are inappropriate in the
Green Belt unless for a specified exception. New buildings for agriculture and
forestry are listed as exceptions, but dwellings are not included in that
category (even if they are intended to support such a use). Consequently, if
the site is in the Green Belt, you should consider any established essential
need as another consideration that may clearly outweigh the harm to the
Green Belt (and any other harm) and so amount to very special
circumstances. See ITM chapter
on Green Belts.
Conditions
155. If you intend to allow the appeal, should a condition be imposed to restrict
occupation? You need to consider:
• is there a proven ‘essential need’ for a rural worker? – and
• would permission for an unrestricted dwelling be refused because it would
conflict with paragraph 79 of the Framework and/or relevant development
plan policy? If so, then a restrictive occupancy condition would be
necessary.
55 Hard copy available for loan through the
Library
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156. If you intend to impose a condition you will need to consider if it would be
appropriate to limit occupation:
• specifically to a worker in connection with the enterprise/place of work (for
example, the specific farm) or
• to rural workers in the locality (ie so it could help meet a local need for
rural worker accommodation if no longer needed by the original enterprise)
and,
• to any dependants, widow, widower or surviving civil partner?
157. If the work or enterprise has not yet been established or is new – and
depending on the evidence provided - you may need to consider whether the
accommodation should be provided initially on a temporary basis to allow the
work/enterprise time to get established? If so, a condition should be imposed
to achieve this.
158. There may be a demonstrable need for an additional agricultural dwelling on
farms where an existing farmhouse is not subject to such a condition. The
Courts have held, in
Macklin and others v SSE and Basingstoke and Deane
Borough Council [27 September] 1995 that it can be appropriate to impose a
condition restricting occupancy on the existing farmhouse as well as the new
dwelling, if this is necessary to ensure both dwellings remain available to
meet the need and to protect against the risk of further pressure for new
dwellings. If you consider that such a condition may be necessary, and the
matter has not been raised, then you should seek the views of the parties.
159. Sometimes an existing farm house is occupied by the farmer who proposes to
retire. The proposal may be for a new dwelling for the person who is going to
take over running the farm, for example a son or daughter and their family.
In such circumstances it is relevant to take account of the judgment in
Keen v
SSE and Aylesbury Vale DC [12 May] 1995
56 where it was found to be
unreasonable to expect a farm worker to relinquish his property on retirement
to provide accommodation for the functional need on the holding. On the
other hand, a retired farmer may still intend to play an active role in the
management of the holding. He or she may therefore be able to undertake
those tasks that require a continuous presence. In such circumstances there
may not be sufficient justification to support a further dwelling.
Choice of procedure
160. You will find that it is not unusual to be provided with detailed evidence
regarding the nature and operation of the enterprise (in order to establish a
need for a worker to be present at most times) and its financial viability and
future business planning (to establish it will endure). As such evidence is
likely to need to be tested by questioning then a hearing is often the most
effective procedure.
56 [1996] JPL 753
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Deleting or varying an agricultural occupancy condition
161. In this type of case you will need to decide whether it is still necessary to
continue to limit occupancy to a rural worker? (if not, the condition is unlikely
to be necessary)
162. Depending on the cases put by the parties, you may need to consider:
•
Is there evidence of a need for a dwelling in relation to the specific
work/enterprise or in the wider area – now and/or in the longer term?
•
Has the dwelling been offered for sale and/or rent for a reasonable
period at a price that reflects the occupancy restriction imposed by the
condition? If so, were there any offers or interest?
•
Are there any assessments of the need for farm, or other work related,
dwellings in the area?
163. The following legal cases dealt with issues relating to conditions. However,
note that they all predate the 2012 Framework:
The Inspector was entitled to consider whether the original imposition of the
condition was appropriate as this was capable of being a material
consideration. However, the Inspector was also required to consider the
current planning circumstances and to decide whether there was currently an
(agricultural) justification.
(Sevenoaks DC v SSE & Mr & Mrs Geer [1995])
The Inspector was entitled to take account of the probability that the condition
would not have been imposed had there been a contemporary application for
planning permission. In this case the condition might not have been imposed
because the site now fell within the settlement limits of the village.
(Hambleton v SSE & Others [1994])
The Inspector concluded the principal issue was to establish if the condition
had outlived its usefulness. To do this, three possible options needed to be
considered – potential sale to a bona fide occupant, renting the dwelling to a
bona fide occupant and continuing local need. The Court held that the
possibility of letting was material and went to the heart of the issue, namely
whether or not there was any demand for an agricultural workers dwelling.
(Thomas v NAW and Monmouthshire CC 1999).
There may be disagreements over the interpretation of the words “mainly
working in agriculture” and “dependants
”. The House of Lords has defined
"dependants" as persons living in a family with the person defined and
dependent on him / her in whole or in part for their subsistence and support
(
Fawcett Properties Ltd v Buckingham County Council 1961). Further
information is provided in the
ITM Enforcement chapter.
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Holiday Cottages
164. There is no definition of dwellinghouse in the Act, but i
n Gravesham BC v SSE
and O’Brien [1983] JPL 306 it was accepted that the distinctive characteristic
of a dwellinghouse was its ability to afford to those who used it the facilities
required for day-to-day private domestic existence. It did not lose that
characteristic if it was occupied for only part of the year, or at infrequent
intervals, or by a series of different persons. Consequently, a holiday cottage
that meets the
Gravesham test will usually be treated as a dwellinghouse for
the purposes of applying planning policies and not as a commercial leisure
use, even if its occupation is restricted by condition.
Housing Standards
Background
165. A national system of housing standards commenced in 2015, following the
Written Ministerial Statement (WMS) Planning Update March 2015. This set
out the Government’s policy on the setting of technical standards for new
dwellings57. The WMS has not been replaced by the revised Framework and
provides relevant background.
166. The system means that additional optional standards for water efficiency,
access and internal space, over and above the mandatory minimum standards
contained in the Building Regulations, can be required.
167. The system defines specific additional optional Building Regulations
requirements on water efficiency and access, and a new national space
standard – known collectively as ‘the optional national technical standards’.
The optional access standards comprise Building Regulations Requirements
M4(2) (accessible and adaptable dwellings) and M4(3) (wheelchair user
dwellings). The Lifetimes Homes standards (which mainly relate to
accessibility to and within a dwelling) and the withdrawn Code for Sustainable
Homes (CSH)58 are not included in the system59.
168. The way that the optional national technical standards may be applied to
residential development is through condition(s) on a planning permission, in
appropriate circumstances. Therefore planning permissions can lawfully
trigger certain aspects of the Building Regulations.
169. Responses to common questions in respect of the national technical standards
are provided i
n Annex 5 of this chapter.
57 DCLG has confirmed that “new dwellings” includes dwellings resulting from a change of use or
conversion, as well as newly erected dwellings.
58 The CSH was withdrawn in March 2015, except in the management of legacy cases.
59 Note tha
t Building for Life 12 remains extant. It is about urban design rather than the technical
standards for new dwellings.
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170. A summary of how the national technical standards should be applied is
provided i
n Annex 6 to this chapter.
National planning policy and guidance
171. Paragraph 150 b) of the Revised Framework provides that any local
requirement for the sustainability of buildings should reflect the Government’s
policy for national technical standards. Footnote 46 provides that planning
policies for housing should make use of the Government’s optional technical
standards for accessible and adaptable housing, where this would address an
identified need for such properties. Policies may also make use of the
nationally described space standard, where the need for an internal space
standard can be justified. These are concerned with plan-making rather than
decision-taking.
172. There is guidance in the PPG in
Housing: optional technical standards.
173. For decision-taking, the WMS states that:
Existing Local Plan, neighbourhood plan and supplementary planning
document policies relating to water efficiency, access and internal space
should be interpreted by reference to the nearest equivalent new national
technical standard. Decision takers should only require compliance with the
new national technical standards where there is a relevant current Local Plan
policy.
174. Therefore, in deciding whether to determine an appeal other than in
accordance with any existing development plan policy and according to the
WMS, reference should only be made to the national technical standards and
compliance can only be justified when adopted policies are in place. Policies
that refer to local or other standards for water efficiency, access and internal
space, such as CSH or Lifetime Homes, that different from the national
technical standards will not be consistent with the WMS.
175. Whilst BREEAM60 is commonly used as a sustainability standard for non-
domestic buildings, it could previously be applied to domestic conversions and
change of use projects, though not newly constructed dwellings. Some local
plans may also have set BREEAM sustainability standards for new housing (for
instance, for mixed used developments). However, as BREEAM is a technical
standard, it should no longer be applied to housing.
176. In respect of energy efficiency standards, the WMS says:
For the specific issue of energy performance, local planning authorities will
continue to be able to set and apply policies in their Local Plans which require
compliance with energy performance standards that exceed the energy
requirements of Building Regulations61 until commencement of amendments
to the Planning and Energy Act 2008 in the Deregulation Bill [now Act] 2015.
60 Building Research Establishment Environmental Assessment Method
61 See the
Planning and Energy Act 2008, s1(c).
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177. The relevant amendment is not yet in force, which in practice means that for
the time being LPAs can require an energy performance standard equivalent
to former CSH level 4. The current mandatory Building Regulations Part L
2013 requirement is equivalent to former CSH level 3. This is consistent with
paragraph 150 of the Framework.
178. There are separate legal provisions enabling LPAs to include policies in their
Local Plans imposing reasonable requirements for a proportion of energy used
in development in their area to be energy from renewable sources in the
locality of the development, or low carbon energy from sources in the locality
of the development62.
Casework
179. How you define the issue will depend on the specific concerns raised. You
may wish to consider whether any of the following examples could be adapted
to meet the circumstances of your case:
• Whether the proposed development would provide acceptable living
conditions for future residents in terms of the provision of internal living
space, private outdoor space and access for people with disabilities.
• Whether the proposed development would provide acceptable living
conditions for future occupants with particular reference to accessibility
and suitability for changing needs.
• Whether the external areas would be sufficient to meet the day to day
needs of occupants for outdoor living space.
180. When assessing these issues questions to consider include:
• If a proposal falls short of a particular requirement, what harm would
result? Would the living conditions of occupants be unsatisfactory? If so,
in what ways? For instance, would the dwelling be sufficiently
accessible? Would it continue to be accessible as occupants get older?
Would there be sufficient internal or external space to meet day to day
needs?
• How are the relevant policies phrased? Do they express minimum
requirements as absolutes? Or do they include any caveats or exceptions
(including in the supporting text), such as ‘wherever it is practicable’?
181. If you intend to allow the appeal, despite a shortfall against specified
requirements in a development plan or SPD, consider:
• Have you acknowledged the conflict with policy and very clearly
explained why that conflict is not leading you to dismiss? Perhaps, for
example, because any shortfalls are minor and you are satisfied that,
62
Planning and Energy Act 2008, s1(a)&(b).
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overall, acceptable living conditions would be provided, in this particular
case?
Conditions
182. Please refer to the ITM chapter
Conditions for advice on conditions in relation
to housing standards. If you are imposing a condition requiring space or
access standards to be met are you satisfied that the relevant criteria could
be achieved without significantly amending the scheme before you?
Residential Annexes
183. This type of casework most commonly involves proposals for “granny flat”
type accommodation either as an extension to the main house or as an
outbuilding. Occasionally you may encounter proposals for domestic staff
accommodation.
184. “Granny annexes” tend to fall into one of two categories:
• Additions to dwellings which are simply extensions in the usual sense of
the word – i.e. the ‘granny’ would be part of the family or household and
there is no suggestion (in terms of the physical layout or otherwise) that
an independent planning unit would be provided. The same might apply
with an outbuilding to a house.
• Annexes (either by means of an extension or an outbuilding) which
would provide for independent living – for example by including a kitchen
and a shower- or bathroom – and so could potentially be occupied as a
separate dwelling house (so forming a separate planning unit).
185. Concerns from local planning authorities and others tend to fall into two
categories:
• Where the ancillary nature of the accommodation proposed is not an
issue – but there are concerns about the local effect on
character/appearance, living conditions or other matters
• Where there are concerns that the accommodation would be unlikely to
be ancillary and so would, in reality, be used as an independent/separate
dwelling – this might give rise to concerns of principle (for instance, if
countryside policies seek to prevent new dwellings) or that use as a
separate dwelling might cause other problems (eg through additional
traffic, noise and disturbance or an unsatisfactory relationship with the
main dwelling).
186. The judge i
n Uttlesford DC v SSE & White [1992] considered that, even if the
accommodation provided facilities for independent day-to-day living, it would
not necessarily become a separate planning unit from the main dwelling –
instead it would be a matter of fact and degree. In that case the
accommodation gave the occupant the facilities of a self-contained unit
although it was intended to function as an annex with the occupant sharing
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her living activity in company with the family in the main dwelling. There was
no reason in law why such accommodation should consequently become a
separate planning unit from the main dwelling.
187. Consequently, if it is argued that the accommodation would be used as an
independent or separate dwelling, you will need to assess whether it could
also be capable of being occupied as an annex. The following questions might
help you decide:
• Would occupants live as part of the household in the main house? (in
which case the use would be ancillary)
• Would the annex share any facilities with the main house (eg access for
drivers and pedestrians, parking, garden, services/utilities)
• How would it compare in size to the main house (smaller or not)?
• What facilities would it contain (eg kitchen, bathroom, living space,
bedrooms)?
• How close would it be to the main house (near or far)?
188. If you conclude that the proposed accommodation could be used as either an
annex or as a separate dwelling, and there are sound planning reasons why
the latter would not be acceptable, then consider:
• Could such occupation be prevented by means of a condition requiring
that occupation is solely for purposes ancillary to the residential use of
the main dwelling? In such circumstances, without the condition, it
could be argued that it might be difficult to prevent separate occupation,
even though this may not have been what was applied for, consulted
upon or considered. (See the model conditions in the DRDS relating to
“granny” annexes and staff accommodation.)
189. The starting point is to consider the proposal as applied for and on the basis
that any planning permission runs with the land irrespective of the
circumstances of the intended occupier(s). If you conclude that there would
be little realistic prospect of the proposal being used as an annex, you will
need to decide on what basis you should determine the appeal. If you intend
to follow this approach:
• Review the evidence very carefully: are you satisfied that occupation as
an annex would be so unrealistic that the inevitable effect of any
permission would be to create a new planning unit/separate dwelling and
that limiting the use by means of condition would not be reasonable?
• If, following this assessment, you decide to treat the proposal as being
for a separate dwelling (potentially contrary to the description of
development which was applied for), would your approach come as a
surprise to the parties? If so, you would need to provide them with an
opportunity to comment.
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Houses in Multiple Occupation and Permitted Development Rights
Background
190. Houses in Multiple Occupation (HMOs), including those which fall within Class
C463, can benefit from the permitted development rights granted to dwelling
houses by the
Town and Country Planning (General Permitted Development)
(England) Order 2015 [GDPO].
Issues in casework
191. Case law64 has established that the distinctive characteristic of a “dwelling
house” is its ability to afford to those who use it the facilities required for day-
to-day private domestic existence. Whether a building is or is not a dwelling-
house is a question of fact and degree. A “dwelling house” does not include a
building containing one or more flats, or a flat contained within such a
building.
63 The
Town and Country Planning (Use Classes) Order 1987 (as amended) defines Class C4 as use of
a dwelling house by not more than six residents as a “house in multiple occupation”
64
Gravesham Borough Council v The Secretary of State for the Environment and Michael W O'Brien
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Annex 1
IS THERE A MINIMUM OF 5 YEARS’ WORTH OF HOUSING?
Are the adopted strategic policies more than five years old? Paragraph 73 of NPPF
No
Yes
Use the housing requirement set out in adopted strategic
policies
Have those strategic policies
Has there been a past shortfall in housing
been reviewed and found not
completions against planned requirements
to require updating?
since the base date of the adopted plan?
Footnote 37 of NPPF
Yes
No
Yes
No
Add the shortfall to the requirement for the
next 5 year period (Sedgefield method) –
p
ara 044 of PPG
on H
ousing a
nd Econ omic
Land Availability Assessment
Assess local housing need using
the standard method – para 60
of NPPF and PPG on Housing
Need Assessment – paras 001 to
Has there been a significant under delivery of housing over
007
the previous 3 years (85% below housing requirement as
measured by HDT) – para 73 c) of NPPF and footnote 39
Yes
No
Has the LPA demonstrated a 5 year supply of
Add a 20% buffer to improve
deliverable sites through an annual position
the prospect of achieving a
statement or recently adopted plan? Para 73 b) of
planned supply
NPPF and para 049 of PPG on Housing and Economic
Land Availability Assessment 11c)).
Yes
No
Add a 10% buffer to account for
fluctuations in the market
Add a 5% buffer to ensure choice
sustainable development.
and competition in the market
Compare 5 year requirement to the supply of deliverable sites as
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Housing and Economic land Availability Assessment
Annex 2
APPLICATION OF REVISED FRAMEWORK PARAGRAPHS 11 C) & D)
Is this a case where there are no relevant development plan policies, or where the policies which
are most important for determining the application are out-of-date? Or is this a case where the LPA
cannot demonstrate a 5 year supply of deliverable housing sites with an appropriate buffer or where
the Housing Delivery Test indicates that delivery was less than 75% of the housing requirement
over the previous 3 years subject to the transitional arrangements? (footnote 7)
No
Does the proposal accord with an up-to-date development
plan?
Yes
No
Yes
The development should be approved
without delay (para 11 c)).
Para 11 does
not apply.
Para 12
Are there relevant Framework policies
app
lies.
protec
ting are as or a
ssets of particular
importance? (para 11 footnote 6)
Yes
No
Does the application of
those policies provide a
clear reason for refusing
Would the adverse impacts of granting
permission (para 11 d)(i)?
permission significantly and demonstrably
outweigh the benefits when assessed
against the policies in the Framework as a
whole?
(para 11(d)(ii) & para 14 if relevant)
Yes
No
Yes
No
This is a material
consideration in the
final s38(6) balance
The proposal benefits from the
presumption in favour of sustainable
development.
s.38(6) –determine the appeal in accordance with the development
plan unless material considerations (including the Framework) indicate
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Annex 3
Considerations when determining whether housing sites are
deliverable
Definition of deliverable in Glossary to revised Framework and
guidance in para 036 of PPG on Housing and Economic Land
Availability Assessment
Sites should be available now, offer a suitable location for development and be
achievable with a realistic prospect that housing will be delivered on site within
5 years
Distinction between sites that are not major development, sites with detailed
planning permission, sites with outline planning permission, permission in
principle, site allocations, identified on brownfield register
Clear evidence that completions will begin in 5 years may include:
• Any progress towards submission of an application
• Progress with site assessment work
• Relevant information about viability, ownership or infrastructure
• A statement of common ground with developer confirming intentions,
anticipated start and build-out rates
• Any planning performance agreement re submission and discharge of
reserved matter
Other relevant considerations in establishing whether there is clear evidence
may also comprise:
• If there is a resolution to grant planning permission how long has the
planning obligation been outstanding? When is it likely to be concluded?
• If there is an outline permission, what progress has been made with
discharging conditions?
• What have build-out rates been historically and might this be expected
to change?
• How many outlets will there be on larger sites?
• How long has a site been allocated for development and why has it not
come forward previously?
• Are sites in an emerging plan about to be allocated or has the
examination not progressed sufficiently?
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Annex 4:
Model condition requiring affordable housing
S
ee paragraphs 105-118 above for guidance on when it may be appropriate to
use this condition to secure affordable housing.
Please note that the numbered points in this condition should be expanded to
include relevant details that have been provided as heads of terms, and in
particular to set out the mechanism by which the housing will be secured as
affordable.
No development shall take place 65until a scheme for the provision of
affordable housing as part of the development has been submitted to and
approved in writing by the local planning authority. The affordable housing
shall be provided in accordance with the approved scheme and shall meet the
definition of affordable housing in Annex 2: Glossary of National Planning Policy
Framework or any future guidance that replaces it. The scheme shall include:
i.
the numbers, type, tenure and location on the site of the affordable
housing provision to be made which shall consist of not less than
[**]% of housing units/bed spaces;
ii.
the timing of the construction of the affordable housing and its
phasing in relation to the occupancy of the market housing;
iii. the arrangements for the transfer of the affordable housing to an
affordable housing provider [or the management of the affordable
housing] [if no Registered Social Landlord involved];
iv.
the arrangements to ensure that such provision is affordable for both
first and subsequent occupiers of the affordable housing; and
v.
the occupancy criteria to be used for determining the identity of
occupiers of the affordable housing and the means by which such
occupancy criteria shall be enforced.
The affordable housing shall be retained in accordance with the approved
scheme.
65 See
PINS Note 13/2018 for advice re use of pre-commencement conditions
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Annex 5:
Responses to questions regarding the national technical
standards
Question
Response
The technical requirements
The intention is that the size of the
provide a minimum floor area for a bedroom determines how occupancy is
single bedroom (7.5m2) and a
defined. So a bedroom exceeding
double or twin room (11.5m2). If
11.5m2 is always counted as a double
a one bedroom flat is proposed
bedroom and a bedroom between 7.5m2
and the bedroom has a floor space and 11.5m2 is always a single bedroom
of 11.5m2 or greater (and meets
(all subject to minimum room widths). A
the minimum width for a double
room less than 7.5m2 cannot be counted
bedroom) is the 1 bedroom 2
as a bedroom.
person overall floor space
standard in table 1 (50m2) then
applied? It is possible that an
applicant could claim that despite
providing quite a generous
bedroom the flat is only intended
as a single person flat and so the
37/39m2 floor space should be
applied.
Whether it is acceptable if a home The Nationally Described Space Standard
meets the overall gross internal
sets an overall minimum gross internal
(floor) area but one or more of the area for the home and minimum floor
bedrooms does not meet the floor areas and room widths for bedrooms and
area set out in the Nationally
minimum floor areas for storage – it does
Described Space Standard (e.g.
not set standards for the size of any
large living area with bedroom(s)
other rooms (e.g. kitchen or living area).
below the standard).
To meet the Space Standard the home
must meet the overall minimum gross
internal area AND the minimum floor
areas and room widths for bedrooms
AND minimum floor areas for storage, as
set out in the section on Technical
Requirements and Table 1 of the
Nationally Described Space Standard. If
the home meets the overall minimum
gross internal area but a bedroom(s)
does not meet the required minimum
floor area and/or width then the Space
Standard would NOT have been met.
Are the built-in cupboards included Yes, the built-in storage space is included
in the gross floor space areas in
in the gross internal floor area in the
the Nationally Described Space
Nationally Described Space Standard.
Standard (NDSS) or are they in
addition to it?
Do the NDSS apply to permanent
The answers to these questions depend
mobile homes?
on whether and how the LPA chooses to
The NDSS do not refer to bed- apply the NDSS. The NDSS is not
sits. Does this mean bed-sits are mandatory – it is up to authorities if they
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not considered acceptable in want to put it in their plan and they have
principle?
discretion on how to apply it. They need
Do NDSS apply to new dwellings to justify the need for it, and whether
converted from existing buildings? there is any adverse effect on
development viability, and affordability.
The LPA has discretion over how the
NDSS is applied and can choose whether
or not to apply it to mobile homes or
bed-sits. The NDSS can be applied to
conversions as long as express planning
permission is required for it (unlike the
optional technical standard on access
which can only be applied to newly
constructed dwellings).
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Annex 6:
The national technical standards and how they should be applied
Planning Practice
Written Ministerial
Guidance on Optional
Statement, March
Technical Standards
2015 and the National
Planning Policy
Framework 2018
Accessibility and
Policies for enhanced
WMS
wheelchair housing
accessibility or
Existing Local Plan,
adaptability should refer neighbourhood plan, and
to Requirement M4(2)
supplementary planning
and /or M4(3) of the
document policies
optional requirements in relating to water
the Building Regulations
efficiency, access and
and it should be clear
internal space should be
what proportion of new
interpreted by reference
dwellings should comply to the nearest equivalent
with the requirements.
new national technical
Policies should also
standard.
account for factors which
may make a site less
Planning policies relating
suitable for the
to technical security
standards (e.g. flood
standards for new homes
risk, topography),
will be unnecessary
particularly where step-
because all new homes
free access cannot be
will be subject to the
achieved or is not viable. new mandatory
Building
Regulation Approved
Policies for wheelchair
Document on security
accessible homes only
(Part Q). Policies relating
apply to dwellings where to the external design
the local authority is
and layout of new
responsible for allocating development, which aim
or nominating a person
to reduce crime and
to live in that dwelling.
disorder, remain
unaffected by this
Policies can set different statement.
requirements from the
wheelchair accessibility
Where policies relating
standard to meet a
to technical standards
specific and clearly
have yet to be revised,
evidenced need of an
local planning authorities
individual. The
are advised to set out
requirements should only clearly how the existing
be applied to homes
policies will be applied in
where a local authority
decision taking in light of
allocation policy applies
this statement.
(and be subject to
viability considerations).
NPPF
Planning policies for
Water efficiency
Policies can require new
housing should make use
standards
homes to comply with
of the Government’s
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the optional standard
optional technical
(which is tighter than
standards for accessible
that required by building and adaptable housing,
regulations), where
where this would
there is a clear and
address an identified
justified local need.
need for such properties.
Policies may also make
Internal space
Internal space standards use of the nationally
standards
can only be applied if
described space
there is a relevant plan
standard, where the
policy. Such policies can need for an internal
only require compliance
space standard can be
with the Nationally
justified.
Described Space
Standard.
Energy Performance
WMS
Policies requiring
compliance with energy
performance standards
that exceed the energy
requirements of Building
Regulations can be
applied until
commencement of
amendments to the
Planning and Energy Act
2008 in the Deregulation
Bill [now Act] 2015. At
this point the energy
performance
requirements in Building
Regulations will be set at
a level equivalent to the
(outgoing) Code for
Sustainable Homes Level
4.
Until the amendment is
commenced conditions
should not set
requirements above a
Code level 4 equivalent.
NPPF
Any local requirements
for the sustainability of
buildings should reflect
the Government’s policy
for national technical
standards.
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