Some thoughts on neighbourhood planning

Since getting out of the way of the naighbourhood planning enthusiasts I have been trying to help from the sidelines with the same messages that were rejected when working inside the tent - as chair of the parish council and its planning committee.  Possibly 2000 NDPs are under way or have been made and all will be different in significant ways.  However, I am writing this blog in case the experience in my village has any similarities to others and might have some lessons for the unwary.

The first and most important point to be made is that there is evidence of the NDP not being read or understood by those seeking to apply it to developments in the village.  At the first committee when a significant development was being considered after the 'making' of the NDP the councillors had not brought their copies along and had not the first idea which policies were relevant and, when they were introduced from the public seats, how they should be applied.  This leads on to the next point that is the diffiiculty in drafting policies. I have blogged before on the need for policies to be proscriptive (what should not be done, prescriptive (what should be done) or permissive (what could be done). The neighbourhood planners have bequeathed the district council a plan with policies that do not mean what they had hoped but are pressing very hard for the intended meaning to apply.

Having been delegated the power to produce development plans (by the Localism Act 2011) the neighbourhood planners have taken it upon themselves to negotiate with prospective developers of the allocated sites. There is complete confusion about whether this is a rather detailed consultation (on behalf of whom it is not clear) or some form of negotiation on which the developers could reasonably rely.  Having voted on an NDP which is being interpreted in ways which could not have been anticipated at the time of the referendum, the village residents are now being 'represented' in respect of matters that were not even mentioned in the NDP.  Attendance at the meetings of the parish council or the implementation committee (of mostly non-parish councillors)  is possible but an opportunity taken up by one or two people.

The Localism Act did not foresee the extent to which local people would depart from planning practice as it has developed over the last 70 years.  The theory that the basic condition of conformity with strategic policies in the local plan (if one exists) does not appear to have prevented the neighbourhood planners from re-defining and supporting ribbon development (that was proscribed in the NDP), from successfully objecting to a development that was not allocated but which accorded with all other NDP policies (i'll come back to the main transport policy), and have decided that the development of two thirds of an open space at the centre of the village preserves or enhances the agricultural and rural  character the conservation area.   The committee has an interesting use of the term 'consensus' which seems to refer to the two or three people engaged in the negotiations with developers (or is it a consultation?).

Just on the question of transport a policy requiring new developments to 'reduce traffic' survived both the examination and scrutiny by the LPA that had been limiting development in the village due to a serious bottleneck on the main route out.  This policy is routinely ignored by the PC, implementation committee and the LPA.

My warning is that it will be hard to dissuade those who have prepared neighbourhood plans from wanting an active role in the implementation. However, these people are unlikely to have any experience of this exercise while assuming that the localism agenda if not the legislation gives them the authority for doing so.  This is an unequal 'contest' and the concept of consulting or negotiating 'without prejudice' seems to be beyond the comprehension of this very small number of enthusiasts.

None of this is 'sour grapes' from somebody squeezed out of the NDP process but a question as to how much of accepted planning practice (re ribbon development and conservation) is being re-written.  The very sad thing is that where innovation is required, for example in respect of local food systems, affordable housing/community land trusts, group self/custom-building, low carbon transport, the opportunities are being missed.

Inspector rules that food is a planning matter

Much as I would like to share my comments on the Housing and Planning Bill I am afraid that the ideology of the Government has come up against the rather deeper knowledge in intelligence of the Lords and it is impossible to know what the outcome will be (ie when the Commons vote on the amendments).  

So this blog goes back to the subject of food and rejoices in the fact that the Inspector charged with examining the VALE OF WHITE HORSE DISTRICT COUNCIL LOCAL PLAN PART 1 has issued a number invitations for further comment.

INSPECTOR’S REQUESTS FOR INFORMATION FROM THE COUNCIL

"Has the Local Plan 2031 Part 1 adequately addressed the needs of the food production industry as per paragraph 161 of the NPPF?"

To make this intelligible the relevant extracts from the National Planning Policy Framework are included in this blog: 

"Business

160. Local planning authorities should have a clear understanding of business needs within the economic markets operating in and across their area. To achieve this, they should:

●work together with county and neighbouring authorities and with Local Enterprise Partnerships to prepare and maintain a robust evidence base to understand both existing business needs and likely changes in the market;

and

●work closely with the business community to understand their changing needs and identify and address barriers to investment, including a lack of housing, infrastructure or viability

161. Local planning authorities should use this evidence base to assess:

●the needs for land or floorspace for economic development, including both the quantitative and qualitative needs for all foreseeable types of economic activity over the plan period, including for retail and leisure development;

●the existing and future supply of land available for economic development and its sufficiency and suitability to meet the identified needs. Reviews of land available for economic development should be undertaken at the same time as, or combined with, Strategic Housing Land Availability

Assessments and should include a reappraisal of the suitability of previously allocated land;

●the role and function of town centres and the relationship between them, including any trends in the performance of centres;

●the capacity of existing centres to accommodate new town centre development;

●locations of deprivation which may benefit from planned remedial action; and

●the needs of the food production industry and any barriers to investment that planning can resolve."

My comments to the Inspector are as follows:

"1.      This policy cannot have been complied with without also demonstrating compliance with para 160 that refers to LEPs and changes to business needs.  In fact the OxLEP is aware of the need for ‘starter farms’ [1]but this does not seem to have been conveyed to the LPA.  The LPA response to the inspector’s question relies on the CE/SQW Report that does not address changes to the local food systems or the barriers to change that, as implied by this question, a ‘sound ‘ local plan would need to address.  The ‘robust evidence base’ required by para 160 and which should deal with the role that food and agriculture plays in housing, soils, biodiversity, as well as employment and business is entirely missing.

2.      The ‘barriers to investment’ that the draft plan has failed to identify or address let alone ‘resolve’ include the affordable land for new farm enterprises, the associated and affordable housing, and the components of a low carbon food system in terms of production, processing and distribution.  The LPA response is not and could not be that para 161 is irrelevant but, despite have received representations throughout the plan preparation period, changes to local food systems were simply not investigated.  The ‘business as usual’ approach to food systems is not only contrary to the NPPF requirement to consider changing needs, but contribute to locking-in the existing systems and make change much more difficult.  Sound planning is expected and required to avoid  this trap and positively plan for the future.

3.      The consequence of this omission (not only causing the plan to be unsound) will be that the changes necessary to reduce the carbon emissions from agriculture will be made much more difficult if not impossible to achieve. The plan must be able to show how it would contribute to the achievement of sustainable development and mitigate carbon emissions.[2]  Given the significant scale of carbon emissions from agriculture (and subsequent processing and distribution) the 60% reductions to carbon emissions required by 2030 will not be possible if the plan does not deal positively with this issue.

4.      The necessary changes anticipated by paras 160 and 161 are likely to involve an increase in new farms and farmers who without modifications being made to the plan will not find it possible to access suitable and affordable land or associated housing." 

I hope that my blog conveys the idea that the main problem with the planning system is that it puts people off and despite the reduction of reading load represented by the NPPF, few people actually read it and use the good bits in advocating the necessary changes to bring about sustainable development.  In this case the Inspector is asking how the draft local plan meets existing Government policy.

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[1] Creating the environment for growth OxLEP 2-15  p63

[2] ss 39(2) and 19 of the Planning and Compulsory Purchase Act 2004 (as amended)

An honest re-defining of affordable housing

The Government has extended (to 22 April) the consultation on amendments to the NPPF in respect of the definition of affordable housing, prompted by the expectation that Starter Homes will be part of the Housing and Planning Act when it has worked its way through the legislative process.  Those thinking of responding could reference the following.

Send your thoughts to:   planningpolicyconsultation@communities.gsi.gov.uk

Affordable Housing Re – definition

Background

1.         This is an excellent opportunity to restore one of the areas of planning control that has led to its serious loss of credibility. What is being referred to in planning circles as 'affordable' is seen as ridiculous by those faced with paying up to and over half their income in rent and/or mortgage payments to keep a roof over their heads.  Those in the PRS (the fastest growing sector) see the safety net of social renting becoming less available.   It should be a main purpose of the planning system to provide an adequate supply of housing that can be paid for through about 30% of gross household income (the other purpose is ensuring that all housing is sustainable).  If this is not possible through home ownership (and Government statistics should be able to reveal the extent to which households could reasonably afford to buy – subject to Bank of England estimates of interest rates and a normal 5% discount) then the remainder would have to be accommodated in rented accommodation.  In the absence of any rent controls in the PRS (that should be on the Government agenda), it will be the social rental sector that must meet these needs.

 2.        Providing a reasonable and realistic definition of ‘affordable housing’ is one of the few areas of written guidance that does justify considered change and should not be regarded as part of the perpetual meddling by this and previous governments.

3.         Decisions on what policies should be introduced, applying new or old definitions, should always attempt to analyses planning for housing as a system and take a systemic approach.  

  

Definitions

4.         The current definition of affordable housing follows the original High Court judgement that found there to be a material planning difference between a home that could be afforded by a local person, taking into account local earning potential, and one that could not. 

"Affordable housing: Social rented, affordable rented and intermediate housing, provided to eligible households whose needs are not met by the market. Eligibility is determined with regard to local incomes and local house prices. Affordable housing should include provisions to remain at an affordable price for future eligible households or for the subsidy to be recycled for alternative affordable housing provision."(emphasis added)

This definition of eligibility makes no reference to Housing Benefit, Help to Buy, Funding for Lending or any other discounting through public subsidy or the bank of mum and dad.

5.         "Social rented housing is owned by local authorities and private registered providers (as defined in section 80 of the Housing and Regeneration Act 2008), for which guideline target rents are determined through the national rent regime. It may also be owned by other persons and provided under equivalent rental arrangements to the above, as agreed with the local authority or with the Homes and Communities Agency."

No amendment is required to the definition of 'social housing', although this should not be within the definition of 'affordable housing ' if the 'national rent regime' requires public subsidy.

6.         "Affordable rented housing is let by local authorities or private registered providers of social housing to households who are eligible for social rented housing. Affordable Rent is subject to rent controls that require a rent of no more than 80% of the local market rent (including service charges, where applicable)."

This definition does require amendment as, in many if not most parts of the country, 80% of market rents would not satisfy the 'eligibility' criteria’ relating to local incomes.  If there is a public interest or planning benefit of retaining a category of houses rented at 80% of market rents then this should be the subject of some special justification.  What is unacceptable is to continue to call it ‘affordable’ and include it in the Glossary as such.

7.         The consequence of corrupting the original definition through the ‘national rent regimes’ and the reference to 80% of market rents has contributed substantially to house price/rent inflation and s106 obligations have acted like a conduit passing various public subsidies straight into the pockets of developers and landowners.  ‘School-boy economics’ explains that increasing demand without a commensurate increase in supply will cause an increase in price and, therefore, the level of unaffordability. There isn’t a housing supply model that suggests that prices can be reduced where there is less than 1% annual increase in supply, mostly by developers intent on maintaining if not increasing prices.

8.         In fact there could be a significant impact on prices if most of the 200,000 new dwellings built each year were small/2 bedroomed properties.  A substantial increase in supply of what are already intrinsically the cheapest form of property could reduce prices in that particular sector.  Incidentally, there would still be a supply of larger properties for households larger than the average of 2.4 people due to the downsizing of some of the 8 million household looking for attractive ‘right-sizing ‘options

9.         "Intermediate housing is homes for sale and rent provided at a cost above social rent, but below market levels subject to the criteria in the Affordable Housing definition above. These can include shared equity (shared ownership and equity loans), other low cost homes for sale and intermediate rent, but not affordable rented housing."

Homes that do not meet the above definition of affordable housing, such as “low cost market” housing, may not be considered as affordable housing for planning purposes."

Consultation Q1.

Do you have any comments or suggestions about the proposal to amend the definition of affordable housing in national planning policy to include a wider range of low cost homes?

10.       The eligibility criteria are based on the Court's justification for distinguishing 'affordability' as a material consideration being the relationship with local earnings  is logical and must not be changed.  

11.       In fact the system would work as intended: to provide genuinely affordable housing, if the eligibility criteria were consistently applied.  The Glossary/definitions should be brought into line by removing the "affordable rent" category that is an abuse of language, and ensuring that "social rent" is affordable relative to local wage levels. 

12.       There is no reason why intermediate housing or even low cost houses for sale (including Starter Homes) could not be included,  so long as the eligibility criteria are met. There is a difficulty in that the affordability in terms of purchase of all or some of the equity is conditional on the interest on loans.  In these circumstances the affordability should be based on a Bank of England estimate of the interest over 20/25 years and not any current (loss leading) deals that might be available and a 5% deposit.

13.       There is also a case for including self/custom building by individuals or associations of individuals within the definition of 'affordable housing' subject in each case to the submission of a business plan showing that the house(s) would be provided (to a liveable standard to allow for self-finishing)  at a price to meet the eligibility criteria relating to local earnings.  This would remove the existing disincentive for LPAs to support self/custom building due to the exemption from s106 obligations and other tariffs that already apply to affordable housing.  There would also be the opportunity for self/custom builders to share the equity with a Registered Provider that could have provided and retained ownership of the land/serviced plots on which the houses were built.

Garden Cities and local food systems

The reason that I am not a fan of new settlements is that I feel that a substantial amount of new development should be in the form of smaller dwellings, many in the form of co-housing and commissioned by associations of individuals (see Housing and Planning Bill and opportunity to sign up to registers held by Local Planning Authorities after 1 April).  New settlements are more likely to perpetuate the current unsustainable levels of under-occupation of our housing stock that using new build to balance the size of houses and households.

Having said that, the Government has continued with its support for new settlements with a call for expressions of interest in the recent publication of "Locally-led garden villages, towns and cities" found through Google but with expressions of interest required by 31 July 2016!  How local opinion will be ascertained within the next 4 months and how these proposals would fit with existing and emerging development plans is a puzzle.

Those wanting to contribute to this 'debate' might be interested in the email sent to the Communities Secretary.

Dear Sir or Madam

Having read through the latest promotion of garden villages, towns and cities I would be interested to know whether this is an amplification of the advice at para 52 of the NPPF or intends to change it in any way?

Para 52. states,  "The supply of new homes can sometimes be best achieved through planning for larger scale development, such as new settlements or extensions to existing villages and towns that follow the principles of Garden Cities…."

It was and is a fundamental principle of garden cities (and sustainable development) that the urban areas are functionally related to the surrounding rural hinterland  that should include zones for market gardening.  it seems to be the case that in the desire to see more housing being built the important contribution that should be made by local/regional food systems is being overlooked.  If Para 52 of the NPPF remains as Government policy should DCLG not be reminding those submitting expressions of interest that the related use of the surrounding rural area will be fundamental to their prospects of success?

Yours sincerely

Custom building - and a back door to co-housing

The Government is keen to see the level of self/custom building increased from about 8% of housing supply to something approaching 20% that will still be among the lowest in the world.  A substantial contribution from this sector is need if the 1m new dwellings by 2020 promised by the Government in 2015 is to be achieved.

All local planning authorities (LPAs) are being required to have registers available by 1 April 2016 for those wanting to self or custom build.  This under the 2105 Self Building Act and the Registers might have to change when the Housing and planning Bill passes into law as it is likely to include the scope of associations to register their interest to include those wanting to co-house.

There will then be a requirement for LPAs to provide the land on which the demand shown in the registers can be expressed. The target is for 50% to be met in three years and 100% within five.  I take this to be a rolling horizon so that people can expect to be on the registers for between 1 and 5 years with an average of 3?  There is nothing to stop people  registering in different local authority areas although councils might give priority to those with local connections.  If councils fail to provide suitable land/serviced sites the remedy would seem to be that those on the registers could try to self provide and use the council's failure as an argument at appeal in a similar way to the argument used by volume builders that there isn't a five year housing land supply.  This would be in addition to political pressure being applied through councilors, parish councils, members of parliament and the media.

In many parts of the country it is highly unlikely that the registered demand will be met without reserving sites on large allocated and permitted sites.  Logically 20% of such sites should be reserved for self/custom builders to move towards the Government's target.  However the Department of Communities and Local Government seems to think that 'requiring' this approach would be contrary to the spirit of localism and should emerge from the duty placed on councils to find effective ways to meet the registered demand.  If this approach is not adopted then self/custom build sites might be additional to the Local Plan allocation or contribute to the windfall 'allowance'. Such sites should still be in suitable and sustainable locations. 

We should be queuing at planning offices on 1 April (if not before) with our pens set to express our demand as individuals or associations of individuals for opportunities to create our own homes.  This is also appears to be the only way that co-housing will be privileged through the planning system even if some co-housers see themselves as commissioners of custom built dwellings rather than builders.

And a committee of the House of Lords has recommended that the Government reinstate a Code for Sustainable Homes and the Zero Carbon Homes target.

Housing and Planning Bill technical details

For those with about 5 hours to spare and not wanting to spend these reading my blog posts you could amuse yourselves by going to
https://www.gov.uk/government/consultations/implementation-of-planning-changes-technical-consultation
and helping the Government sort out the mess that will be created by the Housing and Planning Bill when it becomes law later in the year.

This consultation has been designed by somebody with far more knowledge and understanding of the planning system than those who drafted the Bill itself.  The questions reveal the complexities in the system all of which have the potential for unintended and unfortunate consequences.  If the Bill was certain in its outcomes (as legislation should be?) there should be no need to consider the technical details  in such depth. None of the relies will be considered by Parliament.

This consultation reminds me of the very serious problems that the planning system should be addressing; desperately unfair distribution of housing and its unaffordability, climate change, local food systems, excessive mobility and limited accessibility, inflated profits from landownership and declining public services and infrastructure.  All very big problems and all untouched by the major piece of legislation from the 2015 to 2020 Government. I suppose we should not expect much better from legislation drafted by the Treasury but very galling for about 24,000 qualified planners having to learn, understand and apply new rules that appear to be counter-intuitive and counter-productive.

And who will be blamed when these changes do not meet their declared purpose? and will the Government introduce more changes any more likely to have beneficial effects?

I was told by somebody who spends their life studying the planning system that this Government is deliberately destroying the system by increasing the incoherence and creating chaos. Whilst this is bound to be the effect of the proposed changes,  I can't see this logic in that there will have to be a planning system of some description and even the most stupid or clever government minister would want a system that could deliver on their agenda rather than fall apart. Or am I being naive and the whole caboodle will be privatised...

Development Plans must mitigate against climate change

I wonder how many people involved in the planning system are aware of the insertion by the Planning Act 2008 of  182 .Development plan documents: climate change policies into 19 of PCPA 2004 (preparation of local development documents) after subsection (1), the following apparently innocuous clause?

“(1A)Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority's area contribute to the mitigation of, and adaptation to, climate change.”(emphasis added)

I1S. 182 in force at 6.4.2009 for E.W. by S.I. 2009/400, art. 3(e)

http://www.legislation.gov.uk/ukpga/2008/29/section/182

I think that we were excused in overlooking this provision (and I include myself) as this did not prove very easy to find and does not appear to have been applied by those making plans or those engaged in their examination.  I don't think that the examiner to whom I have recently been giving evidence (who seems to be very experienced and knowledgeable) had ever had to consider whether a local plan had been compliant with this legal requirement (note the word "must"). It was disappointing that he seemed to be looking for wriggle room in respect of s39(2) of the same Act despite a clear absence of evidence that the Plan in question would contribute to the achievement of sustainable development.

In this recent case the council's sustainability appraisal had noted that almost all the policies and proposals would have 'minor negative' impacts in respect of carbon emissions with no 'major positive' to result in mitigation of any kind, let alone the level required by the Climate Change Act  and 4th/5th carbon budgets.  Why should there be any concern that the inspector will find some line of reasoning to argue that a development plan that proposes 40% growth and jobs implying probably the same growth in carbon emissions (if not more, due to added  congestion on the roads) would be  'sound'?  

The first reason is that, in the absence of an adopted plan, there is a concern that unplanned for sites will continue to be permitted in the absence of a 5 year land supply.  Whilst this should not matter hugely if such developments were genuinely sustainable in accordance with the presumption  in the NPPF,  there is a general understanding that inspectors (and LPAs) have been approving developments that fall a long way short of any reasonable measure of sustainability.

The second reason is that the inspector might find it difficult to find a plan to be unsound on grounds based on s19,  fearing a legal challenge from the LPA and/or concern from HQ that this would set a precedent for the preparation for all plans to effectively mitigate carbon emissions! However, the QC representing the LPA made no attempt to rebut the assertion of unsoundness on this legal ground and the development industry would be unlikely to challenge due to the benefits derived in the no-plan world. 

Where a point is arguable (although I can't see that the plan in question meets the s19 test) wouldn't it be better for decision-makers to err on the side of those seeking to protect the environment, leaving the spoilers the opportunity to challenge, rather than vice versa?