Housing vs Allocation: The Kings Hill Decision

Tue, 05 May 2020

By now, there may be some who need a gentle reminder that the home is preferable to the office. They need look no further than the Kings Hill decision, in which an Inspector granted permission for 350 houses on land allocated for employment use. The decision illustrates how the priorities of national policy can compete with each other and how the Planning Inspectorate must sometimes choose between them.  

It is not uncommon for policies to pull in different directions. Paragraph 59 of the NPPF states that it is the government’s objective to significantly boost the supply of homes. Paragraph 80 states that significant weight should be placed on the need to support economic growth and productivity. However, the NPPF states that it should be read as a whole and decision-makers must use their judgment to resolve its internal tensions. The pros and cons of a proposal do not always fight on a level playing field. Paragraph 11d tilts the balance towards granting permission in cases where the local planning authority cannot demonstrate a 5-year housing land supply. That was the case here. The Council could only demonstrate a 2.3 – 2.5 year supply.

The development plan safeguarded the sites for employment purposes and expressly forbade the redevelopment of the land for housing. The question for the Inspector was whether national policy justified a departure from the plan. Paragraph 120 sets out when sites can be freed from the grip of their allocations. It states that local planning authorities should support applications for alternative uses if they consider that there is “no reasonable prospect” of the land coming forward for its allocated use.

The Inspector found that there was a reasonable prospect of the land realising its potential for its allocated employment purposes but nevertheless granted permission. The Inspector acknowledged that there was “a degree of uncertainty” shrouding the question of whether the sites would reach their allocated potential, but not one that was sizeable enough to engage Paragraph 120.

The quality of the prospect was a material consideration. The sites had remained vacant for a number of years. The Council had conceded that the construction of any offices on the sites would require public sector subsidy but did not provide any evidence to the inquiry as to where that subsidy would come from. If the Inspector had found that the chances of the sites being developed as employment land were more than just reasonable, then his decision may have been different.

This case shows what the tilted balance can do. The adverse impacts, which consisted of the loss of employment land, were found to not significantly and demonstrably outweigh the benefits of new housing. The reasonable prospect of the sites fulfilling their allocated use was not so important that its loss significantly and demonstrably outweighed the benefits of remedying a housing shortfall.

Developers should draw encouragement from this decision. The provision of new housing in this case amounted to a benefit that overrode a clear conflict with the development plan – without needing to make use of Paragraph 120. The decision bodes well for housing proposals in the future.

 

Paul Cairnes QC and Oliver Lawrence appeared for Liberty Property Trust UK, instructed by Avison Young.

A copy of the decision letter can be found here.

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