How to demonstrate very special circumstances for new housing developments in the Green Belt

Tue, 09 Jul 2019

Introduction

  • The Appellant sought full planning permission for 151 dwellings in Bromley on land within London’s Internal Green Belt.
  • The Appellant proposed buildings ranging from 8 to 5 storeys in height.
  • Bromley Council have just adopted a Local Plan (January 2019) in which the Local Plan Inspector had found the Council had a 5 year supply of housing.
  • The proposal was the subject of objection from the Mayor of London.
  • The Council made an application for a full award of costs against the Appellant for the substance of its case the week before the case started.
  • Inspector George Baird allowed the appeal for 151 (view here)
  • Unsurprisingly, he dismissed the Council’s claim for costs which was ambitious to say the least (view here)
  • He found the Appellant had proven very special circumstances based on housing need, architectural merit and other factors
  • He found the Council had a significant shortfall in its five year supply.
  • He issued the decision within less than 2 weeks of the close of the evidence

 

London’s Internal Green Belt

For those that don’t know, many of London’s larger open spaces, including the Great Parks, enjoy Green Belt protection. This land is designated as Metropolitan Open Space, under Policy 7.17  of the Mayor’s London Plan (2016). The reasoned justification for Policy 7.17 makes clear it is treated exactly the same as Green Belt. “The policy guidance of paragraph 79-82 of the NPPF on Green Belts applies equally to Metropolitan Open Land”. Those paragraphs were the entirety of the Green Belt Chapter in NPPF(2012), for which one would now read paras 133-147 NPPF (2019). Policy 7.17 makes clear that The strongest protection should be given to London’s Metropolitan Open Land  and inappropriate development refused, except in very special circumstances”.  Housing development on Metropolitan Open Land is treated as inappropriate development, the same as in the Green Belt. We did not attempt to argue that this site had anything other than Green Belt status, and that we needed to prove very special circumstances. Similarly, the key attribute of Metropolitan Open Land is its openness just as it is with Green Belt. That is why one should view it as London’s Internal Green Belt.

 

The Bromley Local Plan (2019)

The Council have just adopted a Local Plan, with an annual housing requirement of 641 dwellings per year. That is against a need which the Council itself calculated in the Joint SE London SHMA of 1,315 dwellings per year. The Council’s witness accepted in cross examination that the Local Plan has nothing to do with the Borough’s housing need. The Local Plan Inspector allowed the Council to adopt the plan without touching either the Green Belt or Metropolitan Open Land for housing or conducted any form of review now or in the future. She was however constrained by the present London Plan (Boris Johnson’s Plan) which gives the outer London Boroughs very low numbers. The Bromley Local Plan (2019) is a full local plan with allocations, and the Local Plan Inspector obviously felt obliged to find there was a five year supply under the old NPPF (2012). Mayor Sadiq Khan is proposing much higher numbers for the Outer London Borough’s (1,424 dpa) but still suggests there is no need to touch GB or MOL. Personally I think that is completely implausible, and indeed Bromley have objected saying they cannot begin to meet that requirement. That new 1,424 dpa figure should become the requirement in Bromley by the end of the year, but that did not help this Appellant now. This Appellant has appeared at the London Plan EIP, supported by the HBF, to argue the London Plan must ensure there is a full GB and MOL review.

 

Five Year Supply (Appeal decision paragraphs 7-18)

The Appeal Inspector found the Council did not have a five year supply of housing land. London Boroughs are heavily dependent on windfall sites for their housing supply: most will not touch the Green Belt or MOL or even review it. The Bromley Local Plan allocates less than one third of the land it needs to meet its housing requirement, and many are sites re-heated from the last local plan, which were not delivered. The Inspector worked his way through the Council’s allocations and large site permissions and found this alone reduced the supply to 4.25 years, without needing to look at the smaller sites or windfall allowance. In cross-examination, the Council’s witness accepted that a supply of 4.5 years would be significant (para 18). So having got down to 4.25 years, the Inspector did not feel it was necessary to investigate it any further (para 18). The Inspector applied the new test of deliverable in NPPF (2018 and 2019) requiring clear evidence – and found the Council’s evidence inadequate. The Council relied largely on the Local Plan Inspector’s conclusions, and the fact the PPG says 5YS is best examined at a Local Plan examination .The Appellant relied upon on words of Lord Gill in the Supreme Court (Suffolk Coastal/ Richborough Estates) in which be pointed out “..the insistence on the provision of “deliverable” sites sufficient to provide the five years worth of housing, reflect the futility of authorities relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five-year period” (para 28). In other words, Council’s might benefit from what we all know is the very benevolent view taken towards five year supply by Local Plan Inspectors. But that won’t help the LPA when their five year supply comes under the proper scrutiny of an appeal conducted by way of public inquiry.      

 

Very Special Circumstances (Appeal decision paras 31-38)

The land used to be a sport’s pitch with an associated social club, made of single story buildings on one third of the site. The Appellant located the housing proposal on the PDL, with the rest of the site (the playing pitch) given over to a new high quality public park. But the Appellant was still proposing built development which ranged from 8 to 4 storeys in height. That said, the site is next to a railway station, which both the London Plan and the Government’s Housing White Paper say is where higher densities should be located. The Appellant had also secured permission (and Crest have now built) an 6-8 story building next door, but this was on industrial land. And Bellway have secured permission for 5-9 storey buildings on other industrial land to the north east of the site. But plainly neither of those sites were designated as MOL, and so the Appellant still had to deal with the loss of visual openness and prove VSC. Ministers have said housing need on its own will not normally be sufficient to show very special circumstances. But plainly housing need can be a very significant component of VSC. And the fact the housing requirement in Bromley Local Plan has nothing to do with need features in the Inspectors reasoning on VSC (para 35). As ever, we called an affordable housing witness: this features heavily in the Inspector’s reasoning on very special circumstances(para 35). That witness evidence also deals with the evidence of the national housing crisis – and the Inspector quotes the Secretary of State on this (para 32). The Inspector describes the housing position in Bromley in this terms “The future position for general and affordable housing looks bleak” (para 35).

 

The Architect

This proposal was designed by Ian Ritchie, who is one of the world’s leading architects. If the buildings had been found to be tall buildings (which was the Council’s argument) the Appellant needed to prove they were of the highest architectural quality. As it turned out the Inspector agreed with the Appellant that it was not a tall building. But the architecture was still really important to this case. There was an earlier appeal in 2016 by the same Appellant  which was dismissed for a single ten-storey building (view here)

Ian designed the glass pyramids at the Louvre in Paris, the 150m high spire in Dublin, the RSC Courtyard Theatre, Reina Sofia Museum in Madrid etc.  The list of qualifications after Ian’s name in the list of appearances at the back of appeal decision is enough to make anyone wonder what on earth they have been doing with their life. To have worked with and called someone of this calibre is for me, perhaps one of the most inspiration and enjoyable moments of my career. The Inspector attached significant weight to the architectural and townscape quality of the scheme (para 37).

 

Housing Appeals Success Rates

At the moment, there are a lot of people who are pointing to the significant drop in the success rate of appeal for major housing schemes. Planning magazine (10 May 2019) reported that it is down from 54% in 2013/2014 to now just 38% in 2018/2019. But please treat these statistics with caution: an increasing number of these housing appeals are being conducted by way of informal hearings and even written representation cases. My own experience has been very different. Every planning appeal conducted in the last 18 months has been allowed, save for one for a care home in the Green Belt. These are of course all inquiries – showing perhaps the value of an inquiry. Those successful appeals have included clients sites in the Green Belt, MOL, and many designated neighbourhood plan areas. All the sites have been unallocated and the appeals have overcome claims of severe highway impact, highway safety, valued landscape etc. The one key feature in all of these housing proposals has been to call an affordable housing witness, who as here, also addresses the wider housing crisis. Indeed, over the last few years, I have called an affordable housing witness in 34 determined appeals, 27 have been allowed: a success rate of 79.4%. Lots of people question the need and expense for an affordable housing witness: but to be frank, the statistics speak for themselves.

 

Secretary of State Cases

I say “determined” appeals, because three decisions where I have called an affordable housing witness have still not been determined. They are all planning appeals for housing recovered by the Secretary of State. Those three cases now have a combined delay of nearly ten years (yes, 10 years). Contrast that with the Inspector in this case who issued his decision in 9 working days from the end of the inquiry sessions. And then ask yourself the problem – where does the problem lie with housing delivery in this country.  It is not the housebuilders or the development industry who are the cause of the housing crisis. Far from it. These are the people who have to take real financial risks to deliver sites like this one.

 

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