Tilted Balance in the South East

4th July 2022

Many in the development industry will be keenly aware of the crucial need for housing land within the South and South East of England to address the housing crisis.  The planning system plays a key role in facilitating the delivery of these new homes, whether that be through the planning application system, or alternatively through the Local Plan process for longer term strategic sites.

In the South and South East of England (depending on where one wishes to draw the line – who remembers the South East Regional Plan boundary?) there are some 50 local authorities charged with the delivery of new homes.  In a planning utopia, each of these local authorities would have a clear up to date Local Plan containing policies which establish where housing will be directed across the Plan period.  However, the plan-led system has become more politicised given the need to satisfy the government’s housing delivery test, with many local authorities struggling to bring forward a sound Local Plan.  Some Local Plans have been kicked so far into the long grass, as to be lost.  To add further uncertainty into the mix, many of these 50 local authorities are now equally faced with environmental dilemmas, such as Nutrient Neutrality and Water Neutrality, effectively placing a moratorium on development until such time as appropriate mitigation measures can be demonstrated.

In this context, it is clear that delivering much needed new homes is fraught with difficulty within an uncertain planning system.  The development industry must not, however, be held to ransom whilst local authorities wrangle with the politics of preparing a Local Plan for their area.  And this is where the 5 year housing land supply argument and the Government’s planning policies within the NPPF come into focus.  Paragraph 74 of the National Planning Policy Framework (NPPF) advises that local authorities should annually identify and update a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing. Depending on their previous performance, additional supply above 5 years may be added to provide a buffer to compensate for past under-delivery..

This housing land supply matter is particularly relevant where a local authority does not have an up to date Local Plan.  Paragraph 11(d) of the NPPF says that for the purposes of decision-taking, local authorities should apply a presumption in favour of sustainable development:

“where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

  1. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or
  2. 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”

Putting this into a more local context, this means that where a local authority’s relevant housing policies within the Local Plan are out of date, then the planning team, in considering applications for new housing development, must look to approve developments that are sustainable, where they are in line with the NPPF.  Out of date in this instance means the local authority is unable to demonstrate an appropriate 5 year housing land supply (with buffer) or where the housing delivery test indicates that the delivery of new homes was substantially below the requirement over the previous three years.

Many of the local authorities in the South and South East are labouring to bring forward a sound Local Plan but equally over half are struggling to ensure the necessary 5 year housing land supply is satisfied.  This means that there are opportunities available to prepare applications for new housing where they may otherwise have been discounted by Planning Officers or Committee Members, as inappropriate or premature.

Unfortunately, where a Nutrient Neutrality or Water Neutrality moratorium is operative (i.e. there is not yet appropriate mitigation agreed with the local authority and Natural England) then the ability to use the ‘presumption in favour’ argument for new homes is greatly diminished (Paragraph 11(d)(i) would be triggered) unless appropriate bespoke site-specific mitigation can be demonstrated.

The following local authorities in this area do not currently have sufficient land supply and are a snapshot of the wider picture in the South East.

  • Basingstoke & Deane
  • Waverley
  • Horsham
  • Mole Valley
  • Portsmouth
  • Havant
  • Epsom & Ewell
  • Wealden

Each local authority applies the presumption in favour of sustainable development differently and to varying degrees.  Basingstoke and Deane, for example, acknowledge their lack of 5 year housing land supply and have to date allowed small scale incremental development but have routinely been refusing larger scale developments, leaving these to be tested through the Appeals process.  There is no hard and fast rule how each local authority applies the presumption in favour argument.  However, with our local expertise and knowledge of local  authorities, we are able to advise our clients on the most appropriate strategy.

There are immediate opportunities for landowners in these locations to move their sites through the planning system where local authorities do not have up to date housing policies and where there is an absence in the necessary 5 year housing land supply.  Such local authorities are now exposed to applications for speculative development. Many landowners will not necessarily be aware this tilted balance exists in their area. Our role is to advise our clients where such opportunities exist and which route through the planning system can be positively utilised.

If you would like more information on this topic in relation to a potential site for new homes, regardless of size, then do get in touch.

Karen Tipper, Senior Associate

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