Monday, November 12, 2018

Zero carbon homes are exceptional

For those unfamiliar with the way in which appeals against refusals (or onerous conditions) are handled a page from the Planning Inspectorate web site can be found here.
This appeal is interesting for a number of reasons.  A net zero carbon house is being allowed in a location proscribed by policies in both local and neighbourhood plans.  The justification for granting permission is firstly the 'tilted balance' and expression used by the supreme court when considering the effect of para 11 in the 2018 National Planning Policy Framework where the district council has failed to provide a 5 year housing land supply rendering the development plan as 'out of date' and carrying less weight. Secondly the inspector found the zero carbon design to be 'exceptional'. Although the inspector did not say so, this is the term used at para 79(e) of the NPPF that can justify the building of an 'isolated home in the countryside'. It may be that in this case the location was not 'isolated 'in the normal use of the word and the zero carbon design was just an 'other material consideration' to weigh against the policies in the development plan. 
It is important to remember that planning decisions do not create 'precedents' in a legal sense.  However, inspectors stand in the shoes of the Secretary of State (for Housing, Communities and Local Government) and decision letters can reasonably be cited in support of similar proposals. The Courts have ruled that consistency in decision-making is a material consideration and local planning authorities and inspectors should provide adequate reasons why apparently similar cases are being treated differently.
The lesson for those thinking of building or commissioning a new zero carbon home is that the absence of a 5 year land supply represents an opportunity to build in both isolated (citing NPPF para 79(e)) and in less isolated (see above) locations as a material consideration to further tilt the balance against a restrictive but  out-of-date development plan. Clearly a zero carbon home will only be 'exceptional' while the house building industry continues to supply sub-standard dwellings.

1 comment:

  1. Daniel, surely in line 8, "rendering the development as out..." isn't what you intended? Rather it should be "rendering the development plan" or "rendering the plan"...?