Secretary of State allows appeal for 800 new homes on Greenfield Windfall Site

Fri, 26 Jul 2019

Headlines

 The Development Plan

The Birmingham Development Plan (BDP) was adopted in 2017.

Like many development plans in large urban areas, it allocates very little land for housing. It is heavily reliant on windfalls.

But the City Council argued that a 35 ha greenfield site could not be a windfall and should not be allowed to come forward after a newly adopted plan.

The site was the North Worcestershire Golf Course, until it folded a few years ago:  many people now prefer cycling it would seem.

The City Council also argued the site could not be a windfall as it was promoted unsuccessfully through the development plan process.  

The Inspector disagreed concluding the Council’s approach was wrong and its interpretation of the NPPF was “misguided” (Insp report: para 14.11)

The definition of windfalls in the NPPF imposes no size limit, and the NPPF (2019) now makes no reference to them being mainly PDL sites.

Any unallocated site that comes forward, even large greenfield sites are still of course windfalls.

The Inspector uses the charming analogy of apples which fall from the tree in his rejection of the Council’s case (Inspectors report: para 14.8)

The truth is that the BDP is heavily reliant on windfall sites, something the Council simply failed to recognise.  

So much so that my instructing consultant always felt the proposal was in accordance with the development plan.

We are argued this, and the Inspector agreed and so did the Secretary of State.

And that is why the Appellant has been awarded substantial costs – this proposal is in accordance with the development plan even as a windfall.

Benefits

Five Year Supply: There is a lot of residential development taking place in Birmingham right now. The City Council are not shy in talking this up.

The Appellant argued there was not a 5YS, but the Inspector rejected this, as did the Secretary of State.

The Council applies for costs against the Appellant on this basis – but that was rejected by the Inspector and Secretary of State (See https://www.no5.com/media/1756/3192918-costs-decision-letter-refusing-costs-lpa.pdf)

Most of the supply was very difficult to undermine as it is actually under construction or has detailed consent.  

But in running a 5YS, the Appellant was able to expose the troubled nature of Birmingham housing supply.

 Affordable Housing:

Huge towers are going up in Birmingham City Centre, all flats built mostly as private rented schemes, much of it funded by foreign capital.

And you will know that it is the same in many other UK cities. Politically, of course, this is much easier to sell.

But these city centre developments deliver little or any affordable housing.

In fact there is virtually no net delivery of new affordable homes in Birmingham once one takes into account losses under Right to Buy.

The City Council are very keen to highlight the fact they have their own affordable housing delivery operation.

But its success are completely cancelled out by Right to Buy.

The Appellant called an affordable housing witness, who asserted that net affordable housing delivery in Birmingham had “virtually collapsed”.

The City Council elected not to challenge this evidence and so this statement became agreed evidence.

But this is not unusual: there is a similar picture in most of large urban cities in the UK.

The push for regeneration and PRS has seen AH delivery collapse in such areas.

In contrast, Bloor agreed to provide a policy compliant level of affordable housing – which is as almost unique in Birmingham.

Family Housing

Another problem with PRS and other city centre housing schemes is they don’t delivery family friendly housing.

Bloors development will be almost exclusively family friendly housing set with a large public park in the middle.

In the BDP, the City Council removed a site from the Green Belt for 6,000 houses – intended to be family friendly housing.

The Sutton Coldfield MP Andrew Mitchell objected and the Government intervened at his request, suspending the adoption of the plan

After much delay, the Government eventually deciding to allow the plan through.

But that site is within 13 different ownerships and has stalled, with no real progress having been at all.

The Costs Award against the City Council

The City Council’s reasons for refusal objected to

  • the principle of an unallocated site coming forward; and
  • the loss of open space and ecology

Once the appeal was lodged, the Appellant amended the scheme to offer more open space and ecological improvements.

Officers then advised members to drop the second reason for refusal, which they agreed to do.

The Inspector and the Secretary of State agreed to accept the amendment under the Wheatcroft principle.

The Appellant costs application related to the whole of the costs of the appeal from the date of that amendment.

That is pretty much the whole costs of the appeal, which will run into at least two hundred thousand pounds.

We could not sensibly ask for our costs up to that amendment, and hence it was a partial award of costs.

The Appellant also called landscape, arboricultural, ecology and highway evidence to address the concerns of residents, but not the costs of doing so.

More to Come in Birmingham

When challenged by the development industry and led by Richborough Estates, Birmingham City Council increased it identified housing need as 89,000

But the BDP only seeks to meet 51,000 of that need.

38,000 was to be taken by the neighbouring authorities in the wider Birmingham HMA.

This has largely not happened, with only about 4,000 of the missing 38,000 actually accounted for.

The BDP Inspector gave the City Council three years to find a home for these 38,000 households.

Otherwise it will return to being the responsibility of Birmingham City Council.  

That three-year period comes to an end in January next year.

Bloors were sufficiently confident about its case to proceed ahead of that deadline.

But others will now be eyeing up sites across Birmingham.

Especially as the Secretary of State has once again made clear that 5YS is no restriction on the grant of new permission on greenfield sites.

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