A shift in housing delivery. 5 year supply is dead.

TAN 1 and Joint Housing Land Availability Studies are dead. Long live housing delivery.

You need look deep into the Welsh Government website to read its obituary.  Announced without fanfare, press release or even Ministerial Twitter chirp.  The world has other pressing issues momentarily.  I suspect the strategy was purposefully to change it nice and quietly, under the radar.  

Dismantling began in July 2018 and breathed its last on 26 March 2020. It spawned a couple of revised pages of PPW and 227 pages of new guidance in the Development Plan Manual, including a new approach of monitoring housing delivery against the LDP housing trajectory.  The “stick” where housing isn’t delivered as per the housing trajectory? Two yeas of monitoring and then the LPA chooses if its to review the LDP early.

Ill state controversially here - some readers will no doubt think you work for “them” so you would, that TAN 1 and the PPW 5 year housing land supply requirement broadly worked, especially where a Development Plan was uptodate and robust with viable, deliverable sites.  Too many current Local Development Plans don’t do that.  The perception was that TAN 1 meant sites that communities didn't envisage being developed were released. I would argue, partly at least, that once TAN 1 was applied, some Development Plans began to fall apart at the seams.

Local Development Plans list of failings is/was broad, from poor early communication of vision and lack of genuine community buy-in, woeful consultation, constrained and/or unviable sites in the wrong places (in some cases “least worst” additional sites had to be allocated very late to make numbers up to get through Examination), overly prescriptive targets, other policies and legislative requirements that make delivering even allocated sites difficult. Not to mention unattainable windfall assumptions that increase pressure on the edges of settlements.

It further worked against Councils without a Development Plan and thus no planned housing land supply. Here the presumption in favour of sustainable development in accordance with the development plan and other material considerations indicated permission should be granted. The is of course an answer to that - get a Development Plan. Those communities in Councils without an LDP find themselves in no different a position today than they did when TAN 1 was in force.

Few would disagree with the Ministers ideal that by the time a planning application is submitted, communities should know with some certainty where, how much and when housing (and other) development will take place. An uptodate Development Plan is the linchpin of the updated guidance to achieve this. Only time will tell if the new tranche of LDPs deliver this idealistic view of a Plan-Led system or whether LPA’s have the skills, resources and appetite to constantly monitor and review. I already foresee monitoring reports for 2019-2020 and 2020-21 writing under delivery for these year off under “Covid-19”. However, by late 2021, 2 years of under-delivery will start to bite and the new system envisages LDP’s being reviewed.

The timing of the change in PPW is ever more remarkable for that. As I write, house builders sites remain mostly closed with some expected to re-start with socially distanced working in the next couple of weeks, staff in housebuilding and supporting services are furloughed, estate agents are shut and the housing market has all but stopped. Signs are, at best, of a very gradual move out of the lockdown perhaps by summer, perhaps later. Its almost certain many months of un and under-delivered housing will follow. Calls are already being made for Welsh Government to put measures in place to support an early economic recovery and to ensure much-needed housing can be delivered in the short term and in advance of the latent delay of adopting new and reviewing LDPs.

When and how the economy begins to recover - housebuilding being a key component of economic activity for planning purposes - and the possible effects of a recession on housebuilding and achieving the social and economic benefits of delivering homes is a different matter.

Remote Local Authority Meetings

We have all become more familiar with the joys (and in some cases pitfalls) of virtual meetings through software such as Zoom. MS teams and Skype over the last few weeks. In most cases even technophobes appear to have got to grips with things. Conference calls are now commonly used, with success - especially on time demands - and we hope the success of these, can lead to refinement and more efficient working methods in future. It’s certainly enabled this practice to keep projects on track and moving.

Following cancellation of planning committee meetings across North Wales and with little obvious prospect of them returning soon, its great news that Welsh Government introduced measures effective from yesterday “for participation at meetings of a local authority held before 1 May2021 on the basis of full or partial remote attendance so long as persons who are not in the same place are able to speak to, and be heard by, other participants” with sundry other changes to legislation regarding the provision of notices and summons to such meetings and the like.

In other words - remote/virtual council meetings.

We welcome this move which gives Planning Services the powers needed to continue to move planning applications forward and secure much needed decisions. We look forward to participating.

Yurt Success

Hapus Yurt is is yet another example of the highest quality holiday accommodation emerging throughout north Wales. The owner artist Jack found himself struggling with planning issues associated with some elements of his dream and so approached us to help him out. Its took us and many of the people who had stayed at Hapus Yurt who supported the application at bit of time to get there. Its with great pleasure that i could tell Jack that planning was sorted and approved last week.

Can i add my family, who stayed there last summer, to the list of hugely impressed guests and Jacks truly special place.

Self Build Wales

Not infrequently my youngest daughter sends over details of land that she sees, ever hopeful that dad might have the skills and knowledge to deliver her a site for a dream home. Her aspiration is in fact very modest - somewhere to settle and live gently, quietly, sustainably with as least impact on that place as possible. I’m ever hopeful that one time ill see an opportunity where otherwise my parental instinct to protect from risk kicks in.

its with interest then that Self Build Wales has been launched including a portal that on face value aims to link plots with planning permission for “self build” (evidently those delivered by Local Authorities/RSLs etc through the supporting parts of Planning Policy Wales) to self build applicants to help delivery.

From a quick scan, I note that not one site yet has planning permission or is available to be applied for. The few sites in the pipeline are all in south Wales. It talks of design guides and energy efficiency and making the process easy. The BBC tells us its a world first.

You have to applaud the effort. Not least it de-risks the development process through involvement of Development Bank of Wales who will provide loans to fund development of these plots. Welsh Government states “The scheme aims to remove the barriers and uncertainty around self-builds and custom-builds – such as finding a plot, planning and finance - enabling more homes to be built and enabling Welsh builders to focus on building quality homes”.

Whats not clear is whether whats being offered is land with “just” planning permission or whether these sites are further down the sausage machine of delivery whereby planning conditions or S106’s are resolved and essential supporting infrastructure (water, power, ecology and mitigation, drainage/SAB approvals to name a few) consented and secured {or at least having been discussed and principles agreed}. It is hoped so, because although planning can be barrier to delivery, these others can be just as tortuous and bureaucratic if not more so, particularly to the one-off “self builder”.

My inner cynic wonders just how much this is a headline grabbing exercise, and whether precious and limited Local Authority resources might be better spent unlocking larger stalled or as yet undelivered LDP sites to deliver greater numbers and bringing them to market. Nonetheless, I wish it well.

Ive made a diary note for 8 weeks hence to see how many of the “in the pipeline” sites have progressed as I’m certain success of this kind of portal approach will hinge on users getting results. I will update.

Major Residential Development. Notification to Welsh Ministers

Welsh Government is full of surprises. Yet another unheralded move took immediate effect from 15 January 2020 with publication of the Town and Country Planning (Major Residential Development) (Notification) (Wales) Direction 2020.

The Direction imposes a duty on Planning Authorities to refer applications to the Welsh Ministers where they are minded to grant planning permission for residential development of more than 10 residential units or residential development on more than 0.5 hectares of land which is not in accordance with one or more provisions of the development plan in force. It applies to all applications for such development lodged on or after 15 January 2020.

Previously the duty has applied to “significant” residential developments of 150units + or sites of 6ha or more.

The Directions prevents the Council granting planning permission, were it minded to do so, for 21 days to allow Welsh Government to consider whether to “call-in” the application, various provisions for earlier release, holding directions etc.

Its a move designed to effect uptodate Local Development Plan coverage according to the Minister. More worryingly, it fires another shot across the bows of the development sector referencing yet again the term speculative development in Government statements. The negative connotations this term promotes fails to acknowledge how the failure throughout Wales to produce deliverable LDP’s and the continuing absence of sites that are deliverable, viable in sustainable places where the market wants to build and people need and want to live.

The associated Circular offers no guidance as to how far Welsh Government intend to go in intervening - could it be a light touch oversight or will it call-in a larger number of applications? Time will tell. Neither Government nor Planning Inspectorate has the resource to manage large caseloads if its the latter and will serve only to further delay the delivery of planning permissions.

A fundamental point for Local Authorities to resolve quickly is whether a scheme which, in the ordinary course of events, conflicts with a small part of development plan, but where the planning balance when assessing material considerations weighs in favour of granting permission, needs to be notified to the Minister. As per the 2012 Direction, it requires local authorities must, when notifying the Minister, provide “ a statement of the material considerations which the authority consider indicate (if such be the case) that an application for major residential development should be determined otherwise than in accordance with the local development plan”. That suggests to me that any conflict with the development plan in force may well trigger the duty to notify. Certainly it opens the door to increased risk of challenge on procedural grounds where LPA’s do not do it.

Planning Fees Wales

Welsh Government announced a consultation on increasing planning application and related fees by 20% yesterday. A typical £380 fee would rise to £460.00. Inflation over the period of !0% suggests £420 at current rates. The proposal therefore would deliver a real term 10% increase, at least at the point of introduction.

We expect, as is becoming the norm with Welsh Government planning consultations, this is less consultation and more pre-announcement of it doing (or undoing) something. The Consultation tells us:

• Our evidence suggests the current fee levels for applications are not sufficient to run an efficient development management service as cost recovery is not being achieved. LPAs continue to lose vital income, with the inequality between fees and costs expanding.

You need only look at weekly submission lists to see that many Councils are now - as a direct consequence of legislation Welsh Government introduced - swamped with “low” fee earning applications such as those to discharge planning conditions or for non and minor material amendments. Each bears the same core costs (receipt, administration, consultation, actual processing and issue of decision notice - not least “living decision” notices) as much larger applications.

Historically, planning fees don’t fund planning services directly. In most cases fee income goes directly into core Local Authority funds which planning services are funded from. The consultation tells us In return (for the 20% increase) , we require the additional income generated from the fee will remain the service provision budgets of LPAs and not be offset by an equivalent reduction in corporate funding for the service.

We are sure clients will welcome increased funding retained within Planning Services especially where this plug gaps in skills, improves resources and services to help them achieve placemaking and efficient processing of planning applications. They will not welcome the status quo.

The Consultation also announces future review of the Planning Service funding and fee regimes, with Welsh Government intending to

• consider need to reform the method for charging fees and fees levels in the longer term.

• carry out research on the true costs of running development management services in greater detail against the cost of individual applications.

• carry out investigative work into the efficiency of development management teams in determining applications, speed of determination and processes and procedures..

More change to come then?

The Consultation is open until 13 March 2020.

Its in the description

The Appeal Court handed down judgement in the case of Finney and Welsh Ministers yesterday. The long running case involved wind turbines, where the blade tip height had been increased from 100m to 125m under a section 73 application. It has become commonplace to use S73 to vary approved drawings to authorise modifications to a permitted development, often through reference to varying the conditions attached to that permission. The case dealt with the basic matter of the change of the description of the development (from 100 to 125 metres) and whether S73 permits that.

Lord Justice Lewison following review of previous case law and S73 of the Act states : The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development .

The judgement establishes that it is not lawful to a vary description of an approved development under an application made using the S73 of the Act.

There are still powers and remedies including the potential to use S96A “Non material amendment” powers to secure that same objective (albeit i would suggest the scope for that may be limited); or through an entirely new application for planning permission. Particularly here in Wales, the judgement may have significant consequences for varying major developments where the statutory PAC processes (which do not apply in S73 cases) will be re-triggered.

The immediate lesson? Secure professional advice early on the scale, scope and description of development.

Planning Appeal Success: Correctly engaging Policy and Guidance.

If a policy says you will compile a list of buildings the policy applies to, there should be a list of those buildings compiled. Sounds easy when you put it like that doesnt it?.

A recent Appeal decision highlights how Council’s must be very careful when considering whether to engage a Development Plan policy and Supplementary Planning Guidance. The case in point sought to replace a dilapidated farm building with a new dwelling. The Council applied a LDP policy relating to (non statutory) Building and Structures of Local Importance (BLSI). By so doing it refused planning permission citing conflict with the BLSI policy which the Council considered had a preference to retain the building, that both demolition and the replacement building would harm the integrity and setting of the relevant building and other alleged BSLI in a farm complex as well as to the overall design of the replacement dwelling.

We had not been involved prior to the refusal of planning permission. However, it was obvious from very first sight of the building, it was highly dilapidated despite repairs to stem further deterioration and was in a very poor state. Crucially a “list” of locally important building(s) did not actually exist under the terms of the relevant policy. In that context there was no reason for planning permission to have been withheld. Pete advised initially on application to demolish the building under the Permitted Development regime and then on the Appeal .

The appeal set out that the Council could not reasonably allege conflict with a Development Plan policy where the policy doesn’t apply in the first place - ie if there was no list of BSLI or the building wasn’t on a list that existed then the policy should not be applied. It also set out that Supplementary Guidance document which supported the Policy contained a mechanism enabling the Council to consider whether a non BLSI at the time of making the planning application could be objectively assessed for inclusion in a list whilst the planning application was considered (a not entirely satisfactory situation). Oddly however, the Council did not apply this part of its guidance during the planning application assessment either.

In his decision letter granting planning permission, the Inspector:-

• found the policy text states that a local list of such buildings will be compiled (with SPG setting out the methodology for such a list and identifying criteria and additional controls);

• disagreed with the Council argument that engagement of the policy is not conditional upon the inclusion of the building as a BSLI.

• stated the policy was predicated on identifying buildings/structures of local interest, otherwise it would be so vague that plan users would not know what constitutes a BSLI, with such a designation being applied at the discretion of the Council and

• in the absence of a rational approach to identifying the existing farm building as a BSLI, as referred to in the supporting text of policy ( and the SPG) he did not consider the policy to be applicable or relevant to the development.

In further critique of the Council approach the Inspector found it had given little in the way of meaningful explanation as to the important contribution to the character and interest of the local area the building makes by way of, for example, its distinctive appearance or architectural integrity i.e. what makes the structure a BSLI.

In concluding the Council had acted unreasonably in claiming the building was a BSLI the Inspector considered “the Council’s approach and rationale in terms of applying the policy…lacked substance and was taken without giving adequate consideration to the accompanying explanatory text”. He awarded Costs against the Council on the matter.

The case raises a salutary point where Development Plan Policy relies on a Council carrying out an action (eg compiling a list of BLSI) to engage the Policy, it clearly must do so for the Policy to take any effect. Otherwise Councils risk misapplication of policy and supplementary planning guidance at their peril.

North Wales LDP Update

Like buses, you can wait for ages and suddenly three turn up at the same time.

Conwy County BC commenced consultation on the Preferred Strategy for its replacement LDP from Monday 29 July 2019 to Friday 20 September 2019.. Denbighshire County Council is doing the same for its replacement LDP between 08 July 2019 and 30 August 2019. Although both documents set high level strategies to guide the detailed deposit plans they set out the overall strategy and general scale and likely location of development for the period of the plans.

Flintshire County Council has recently resolved to put its Local Development Plan on deposit from 30 September 2019.

We can never stress enough that your input to Emerging Policy documents and Plans can be crucial as it is far better and often more cost effective to influence the direction of a plan at this stage than latterly to be looking to present scheme that comply with plans. We are here to take your specific instructions

Speaking up for you

Amongst many of the things we do to help your schemes get planning permission is attending and speaking at Planning Committee. Often given a just a short 3 minutes or so to speak to get the ear of Councillors, it’s important that points made are succinct and relate to the key planning points Councillors need to hear.

Pete recently spoke on a scheme at the Neville Hotel in Llandudno, where officers were recommending refusal on flooding and highways grounds. As the Daily Post reported the following day, Councillors overturned officers recommendation and have resolved to grant planning permission. We are now in the process of looking to resolve the points outstanding to secure another permission.