Winning at Appeal: It’s the Benefits Stupid

Mon, 24 May 2021

What is the success rate for planning appeals for new housing refused by a local planning authority?

• 27% - for all appeals determined under the current NPPF (February 2019)[1]
• 24% - for small schemes of 2 to 49 dwellings, mostly built by SME builders
• 43% - for larger schemes of 50-399 which tend to be mostly planning inquiries

But if the benefits of the proposal are properly articulated, it can be a different story. My own experience over the last 7 years (2014-2021) has been broadly:

• 80% - success in persuading an inspector to allow an appeal or recommend approval
• 70% - success taking into account of Secretary of State decisions

These are shown on the table here. Successful appeals which have been allowed are shown in green. Dismissed appeals are shown in red. Greenfield sites are also shown…well in green, obviously. Brownfield sites in brown. You get the idea.

The key point in this article is that in the midst of the persistent and pervasive national housing crisis, appellants need to help themselves, by helping inspectors to fully understand the benefits of new housing proposals. That is the benefits for the local community and the wider area. This ensures the interests that are being articulated and listening to are not just those who are vociferously opposed to new housing because it is located near to their house.  But also those who will benefit most obviously from the scheme.

Success Rates at Appeal in Recent Years

1. The success rate at planning inquiries for major housing proposals used to be much higher. It was around 65% in 2014, following the introduction of the National Planning Policy Framework (NPPF) in 2012. The NPPF introduced the need to boost significantly the supply of homes. This was coupled with the Presumption in Favour of Sustainable Development, which tilted the balance in favour of granting planning permission if the local planning authority (LPA) did not have an up-to-date development plan or could not demonstrate a five year supply of housing land. For the planning system in general, and the housebuilding industry in particular, the NPPF was very welcome news, at a time when many LPAs were failing to make meaningful progress with their local plans.
2. So why have success rates at inquiry fallen. And why is it, in the midst of a persistent and pervasive national housing crisis that the overall success rates for all housing appeals is just 27%. The answers lie partly in the fact that a lot more LPAs now have an up-to-date local plan and more are able to demonstrate a five-year supply of housing land. And, of course, some sites and proposals are fundamentally objectionable for a variety of reasons unrelated to housing need such as heritage impact, flood risk, odour, noise or highway safety concerns.
3. There is however another factor. And in my view, it is something which appellants often overlook. It is the need to properly articulate the benefits of a proposal. And if necessary, enhance the offer if the prospect of success at appeal are low (i.e. the appeal carries a high level risk).

The Pivotal Importance of Affordable Housing

4. About seven years ago, I had a discussion with a man called Robin Tetlow. Robin had been acting as a planning consultant for housing associations for many years. He was advocating the need for good and effective affordable housing policies in local plans. I met him in the summer of 2006 whilst I was representing Malvern Hills District Council in their local plan examination in public. Robin was appearing against the Council, although in a rather less hostile way than Fordham’s, who were for a time the leading expert on the needs for affordable housing. What impressed me about Robin me was his in-depth knowledge of affordable housing need and the balance tone of his evidence.
5. Our paths crossed several times over the following years. I would sometimes appear against him as my practice developed and I started to act for the house building industry and land promoters. My clients would sometimes seek to argue down the affordable housing requirement on a greenfield site. I found this rarely impressed inspectors, much to the detriment of my clients in terms of the overall outcome.
6. In support of my developer clients, I made several attempts to get housing associations to speak at public inquiries on behalf of my clients proposals, when they delivered policy compliant levels of affordable housing. But none were ever willing to get involved. Partly because the Council retain the right to determine which housing association can take up the new affordable homes, making an appearance by any one of them potentially a waste of time as the housing might ultimately be handed to another such registered social landlord (“RSL”). But also because they were often concerned that if they appear against an LPA at an appeal, they would be removed from the Council’s list of preferred RSL providers.

A Specialist Affordable Housing Witness

7. Frustrated by the fact that housing associations felt unable to participate in the appeal process I decided to speak to Robin and asked him whether he would act as a witness for my developer clients, specifically addressing the need for affordable housing. Robin acted for developers as well as housing associations. He was more than happy to do so. What we both agreed was that the very last thing developers should be doing is talking down the delivery of affordable housing. They should in fact be talking it up. Affordable housing is by far the greatest benefit of any planning proposal for housing. And as a matter of fact, it is the single greatest advantage that a greenfield site has over brownfield sites. This is because, certainly based on my experience, most brownfield sites deliver little or no affordable housing; which I have to say calls into question the whole efficacy of the Government’s present version of the Standard Method: but that’s probably another article in itself.
8. At the turn of the decade, I could only persuade a few forward thinking clients of the merits of calling a specialist affordable housing witness. One client who did see the merit of this was Catesby Estates. Its Planning Director was John Acres, who subsequently went on to become President of the Royal Town Planning Institute. But clients willing to accept the need to do this at the time were few and far between.
9. What Robin and I also discussed was that the delivery of affordable housing needed to be understood within the context of the wider housing crisis, both nationally and within the district or borough. A crisis which has been escalating in this country, year on year, certainly since I started practice as a barrister in 1999, if not well before. Indeed, as a student in Leeds in the 1990s, I had worked at LATCH – Leeds Action To Create Homes, inspired by their direct action amidst the growing problem of homelessness spreading across the UK. The affordable housing evidence therefore needed to be set within the wider context of this escalating housing crisis. The crisis effects millions of people, most especially the young. But its unjust effects fall most heavily on those who already suffer the greatest social disadvantage.

Government Acceptance of the National Housing Crisis

10. Then in October 2013, the Government took a decisive step forward. It finally acknowledged that we have a full scale housing crisis in this country. This was articulated by the then Planning Minister Nick Boles in a backbench debate in the House of Common. An impressive politician with a sense of conviction, he did not pull his punches. He entered the debate with these words:

“I need not start by underlining the scale of the housing crisis faced by this country, the extent of the need for housing or the grief and hardship that the crisis is visiting on millions of our fellow citizens.” 

11. I discussed this with Robin and we decided this was precisely the type of material that we needed to put before inspectors to emphasize the problem. And that is that whilst the loss of greenfield land is invariably bitterly opposed by home owners living close to the site, there is another side to this coin. The simple fact is that greenfield sites not only deliver more homes to address the crisis in housing supply. But they also deliver 30%, 40% or even 50% of that housing is affordable housing for those who suffer the “grief and hardship” of our national housing emergency.

The Offenham Appeal

12. My first inquiry in 2014 was for 50 houses on a greenfield site on the edge of the village of Offenham, near Evesham in Worcestershire. 40% of the new homes were to be affordable. This was a good case to present evidence on housing need. With the full support of Jon Rowson, the planning manager at David Wilson Homes, Robin was to be called as a separate witness in addition to the main planning witness and the general market housing need witness (i.e. addressing objectively assessed housing need). The reason I believe one needs a separate affordable housing witness to talk up its delivery, is that the main planning witness at an inquiry already has enough to do. And there is a risk that if the relevant evidence on affordable housing and the wider housing crisis is confined to the planning proof, that evidence inevitably gets cut back and reduced in its scope and significance.
13. An affordable housing witness is also important for another reason. At inquiries, we never hear from those in housing need, who may benefit from new affordable housing. The affordable housing evidence is therefore important in giving their perspective a voice.
14. The LPA was Wychavon, ironically the District in which I grew up, living in the nearby town of Droitwich. Robin collected together various statistics about the housing need in Wychavon and put together his proof. When I read it I was shocked. Wychavon had at the time over 5,000 households on the Council’s waiting list. This was not the Worcestershire of smart market towns and fruit orchards which I knew. Of course, those in housing need were present in Droitwich. In significant numbers. Because although it was originally a market town, in the 1960’s it was expanded to cater for Birmingham overspill. As a consequence it has two very large council housing estates. But the assumption I always had was that people in need of affordable housing had their needs met by the council, or more latterly housing associations. But that it seemed was no longer the case. Added to which, the evidence on market signals in the local housing market showed there was a total disconnect between the income to house price ratio in Wychavon, taking home ownership beyond the reach of most people. And it was no better for those needing to rent, with people having to spend huge amounts of their wages on rent.
15. Appearing before Inspector Mike Fox, we were armed with numerous statistics highlighting the extent of the housing problems in Wychavon. With all his four decades of experience, Robin was then able to fit this within the context of the national housing crisis. David Wilson Homes won their appeal. Inspector Fox took on board all of Robin’s evidence. He commented directly on the state of the affordable housing problems in the District and observing that the evidence presented “confirms the appellant’s conclusion that the market signals point to the need to provide more affordable housing as a matter of some urgency.”

Subsequent Appeals since Offenham (2014- 2021)

16. From that point on, I have managed to persuade nearly all the land promoters and housebuilders I work with to call this evidence. Robin Tetlow was looking to retired shortly after he gave evidence in the Offenham inquiry. Luckily, I had caught him just in time. But when he retired, his fellow director James Stacey stepped up to take his place. James has been assisted by a team of planners who constantly research the housing crisis and all the latest reports, which in recent years has become an almost continuous stream. We regularly discuss what additional evidence might be added from all the latest reports.
17. One of the key developments we have examined is the loss of stock from Right to Buy sales. Right to Buy is the policy introduced by Mrs Thatcher allowing people to buy their own Council houses. If a local authority retains its own affordable housing stock that information is easy to find. But it is much more difficult if there has been a stock transfer to a registered provider. Nevertheless, the statistics that are available show a persistent loss of affordable housing within each LPA area in England, for which there is very little public recognition. And in some major cities like Birmingham, Leeds and Bristol, local authorities are failing to secure any net gain from new affordable housing after Right to Buy losses are taken into account. Some are in fact losing overall stock taking into account that new affordable homes are not being delivered as quickly as Right to Buy stock is being lost. This is also adding significantly to the annual increase in waiting times.
18. In my experience, this evidence is never presented to inspectors at local plan examinations. So it is never addressed in the LPAs housing requirements or affordable housing need. This is something we are now looking to address, working in conjunction with the charity Shelter. But at a planning appeal, unless these facts are presented in evidence, inspectors will be largely unaware of the problem.
19. More and more clients are now on board with the need for an affordable housing witness. Other barristers have also started to call a specialist affordable housing witness. This, in my view, is a very welcome development. Plainly there is a cost involved. Which is why it is perhaps counterproductive for landowners agents to seek minimise appeal costs as they are effectively restricting the appellant putting forward the proper detailed evidence required to best support their own case. Some LPAs seek to resist this evidence. They say that if the percentage of affordable housing provision is agreed, then there is no need to hear this evidence. They often try to persuade inspectors of the same. But the truth is that for many LPAs this evidence makes for uncomfortable reading, and even more uncomfortable listening.
20. When I meet resistance to the calling of this evidence, I always make the point. At an inquiry, as well as the Appellant and the LPA, inquiry time is given over to listening to Rule 6 parties and residents who invariably object to new housing. So why should we not also hear about the issues facing those who would benefit from the new affordable housing, but who rarely speak at inquiry. As Inspector Harold Stephens put it, in his report for major appeals in Droitwich (of all places), where the Offenham appeal decision was relied upon, those on the council’s housing waiting list “are real people, in real need now.”[2] The problem is we just don’t see them at inquiries. As Inspector Stephens put it “needless to say these socially disadvantaged people are unrepresented at the Inquiry, and require the objectivity of the planning appeal to acquire a voice and for that to be heard.”

The Table of Results

21. Last month Tetlow King reminded me of an important milestone. We have done 50 planning inquiries together where this evidence has been called. The firm has kept a record of them all. And they have prepared the attached table. The results show that in appeals where an affordable housing witness has been called inspectors have granted planning permission or recommended to the Secretary of State planning permission be granted in 82% of cases. That percentage drops to 72% when one takes account of the actual decisions by the Secretary of State, who will often reject a positive recommendation from an inspector for political reasons. Nothing screams, ‘I only say I care about the housing crisis, I don’t really care about it’ more than a Secretary of State who rejects an inspector’s positive recommendation to approve a housing proposal.  And I can only imagine how frustrated the reporting inspectors themselves must feel about such decisions. They, of course, are never able to comment.
22. In some instances, where the prospects of success are more marginal, developers and landowners recognise the value of increasing the affordable housing offer. Sometimes this is done with the same policy compliant tenure mix: usually around 60% rented and 40% shared ownership. On other occasions it may involve an extra percentage of affordable homes, but in some other form, such as an additional 10% of homes in the form of discounted market sale. These figures are also shown in the table.
23. There are now a wide range of affordable housing products, and some clients have been willing to be innovative. For example, in a recent appeal in Bromley (appeal 49), the viability evidence showed the proposal could not support affordable housing because of the high build costs. But the site is located on Metropolitan Open Land, which is London’s inner Green Belt, for which the same very special circumstances test must be passed. The Client was willing to offer 19% affordable housing to help make the case for very special circumstances. And this was done in the form of First Homes (the Government’s new form of affordable housing for first time buyers) which involves a 30% discount from market value.
24. The table shows the task of winning housing appeals is getting harder. In 2014, there is a sea of green in which Inspectors were allowing appeals on greenfield sites. That is undoubtedly because of the near constant failure of LPAs to show a five year supply of housing land. And also the lack of up-to-date local plans. In the case of those appeals listed in the table, every single one of them was allowed.

The Position of the Planning Inspectorate

25. I dare say the inspectors who determine these appeals may see things differently. They may feel that they granted planning permission for a wide variety of other reasons and that the affordable housing evidence was only one factor. They may even feel it was not a key factor. I don’t know. And if that is their view, I cannot disprove it. All I can show is the statistics. My own view is that there isn’t a single appeal here were planning permission should not have been granted. The amount of hard work that goes into preparing these proposals and the evidence to support them is immense. The housing needs case is almost always overwhelming at these appeals, especially when it is set in the context of the national housing crisis. It is really disappointing that nearly a decade on from Nick Boles’ acceptance of the housing crisis, national planning policy still does not acknowledge it. I have raised this specific point with the Planning Minister, the Right Hon. Christopher Pincher on Have We Got Planning News for You: https://youtu.be/mrhBOCFEj7g?t=3180 (53 minutes). His reply was that “I recognise the value of what you say which we  have got to have a mission and that has got to be baked into the system.”
26. The Planning Inspectorate may be more interested in one very impressive statistic that comes forward in the summary tables at the end. That is that out of these 50 housing appeals, only one inspector’s decision has been successful challenged in the High Court. That very low 2% figure contrasts markedly with the corresponding figure for the Secretary of State, where nearly 40% of their decisions have been quashed by the High Court (37.5%). In other words, 40% of the decisions made by Ministers in these cases have been found unlawful. Not because of the actions of the inspectors reporting to them. But because of what the Ministers did.
27. More than 2% of the inspectors decisions were subject to a High Court challenge. But the important point is that only 2% were successful. Given 80% of the inspectors’ decisions or recommendations in this table were for the grant of permission, that shows that inspectors have nothing to fear from making the brave and often unpopular decision to grant planning permission. Whilst all of High Court challenges we’ve made to the Secretary of State’s part of the decision making process have successful, I have to confess my target in the infamous St Modwen case was the inspector’s decision itself. That challenge was, as nearly everybody knows, unsuccessful.
28. But on the other side of that con, I have also sought hard to defend inspectors’ decisions, when they come under challenge. Including Alan Boyland’s decision in the appeal at Willaston near Crewe (Appeal 7). Richborough Estates did that all the way to the Supreme Court, even when the Secretary of State lost his nerve after the High Court found against the inspector at first instance[3]. The Supreme Court ultimately firmly endorsing Inspector Boyland’s decision: see Lord Carnwath at paragraph 63 of the judgment. Lord Gill went further giving emphatic support for the idea that a lack of a five year supply of housing land justifies a decision maker reducing the weight to be given to environmental and amenity policies in a local plan (paragraphs 77- 81 on the Judgment)[4]. 

The Problems for Smaller Schemes and SME Builders

29. The latest national statistics reveal a wider and more fundamental problem. This is a very low success rate of 24% for small schemes of between 2 to 50 units. These are the developments usually built by small and medium sized enterprises (SME): in the development industry this usually means small developers and local and regional builders. This is because most of the major housebuilders no longer focus on sites of this size as it is difficult to achieve their usual economies of scale and operational efficiency. Developments of single dwellings have also been excluded because they are often projects done by individuals.
30. There was a time when schemes of 30 or more dwellings would be heard by way of public inquiry, depending on the issues involved. But that is now increasingly rare, as the Planning Inspectorate insist on more and more of these schemes being heard by way of an informal hearing. This despite the fact some will have a Gross Development Value (“GDV”) well over £10 million.
31. What will not be helping the SME builders is the lack of access to good quality professional advice or an appetite for a public inquiry. They are also less likely to want to fund a separate affordable housing witness on top of a planning and general housing need witness. Given most such appeals progress by way of informal hearing or written representation, there will also be far less time given over to the presentation of evidence.
32. It is right to say that very small schemes of only a few houses will not deliver affordable housing, depending on local thresholds which determine the size of schemes where it is required by planning policy. But for most schemes of 10 dwellings or more, affordable housing will be a crucial part of the proposal. So sadly, this major benefit will rarely be subject to much discussion. Some inspectors do not view a policy compliant level of affordable housing as a benefit, suggesting it is mere a requirement of policy. I am afraid I respectfully disagree. Even if it is just 10 affordable dwellings that are delivered, that is lifechanging for the 10 families who move into a new affordable dwelling as a consequence of the appeal being allowed.

The Role of a Shortfall in Five Year Supply in these Appeals

33. Many of the appeals allowed in this table have involved the Appellant showing the LPA does not have a five year supply of housing land. Or the Council conceding the point before the inquiry begins. That has been the position in 35 of these 50 appeals. This is another area where I encourage clients to employ a specialist witness to focus solely on that issue. But a shortfall in the five year supply is not by any means a necessary requirement to win a housing appeal. Several of these cases involve an appeal allowed despite the Council being able to demonstrate it has a five year supply. See the following eight appeals: 14 (Davenham), 16 (Shepshed), 21 (Ludlow), 22 (Newick), 26 (Wilstead), 36 (Wingerworth), 38 (Stoke), and 45 (Wheatley Campus, Oxford).
34. In appeal 2 (Launceston) Inspector Geoffrey Hill found the Council couldn’t demonstrate a five year supply of housing land. But he went on to offer this memorable phrase “irrespective of whether the five-year housing land supply figure is met or not, NPPF does not suggest that this has be regarded as a ceiling or upper limit on permissions.” He observed that “[a]n excess of permissions in a situation where supply may already meet the estimated level of need does not represent harm, having regard to the objectives of NPPF.” Added to which, whatever the position with the five year supply, there is throughout England always a pressing need for more affordable housing. In the Launceston appeal that led Inspector Hill to observe that “[a]s discussed above, there is an acknowledged acute need for affordable housing in this locality and the proposed scheme would bring forward 40 affordable units. This has to be a substantial benefit of the scheme.”

Other Innovations in Respect of the Benefits of New Housing

35. Neighbourhood plans pose another threat to those bringing forward land for new housing. The Secretary of State and some inspectors have cited the need not to undermine confidence in the neighbourhood plan process as a reason for dismissing an appeal. This is becoming more common. It has featured in several recent refusals. Including situations where the LPA is not meeting its own identified housing needs; does not have a five year supply of housing land; there is an acute need for more affordable housing; there are no technical constraints; no heritage constraints; and no loss of any designated or valued landscape: see appeals 47 and 50.
36. Yet despite the support for neighbourhood plans and the permissive interpretation of what constitutes a conflict with a neighbourhood plan in High Court Judgment in Crane v SSCLG [2015] EWHC 425 (Admin), neighbourhood plans are not an embargo on new unallocated development. The strategy I have advised clients to adopt, when promoting schemes which are in conflict with a neighbourhood plan is to “out-localise the localism”.  In other words, make the development proposal more in-line with local needs than the neighbourhood plan itself. This involves looking carefully at local housing needs and, where relevant, introducing more varied forms of affordable housing and specialist housing for the elderly.
37. Also it is always worth considering an element of self-build, for which there is always a need, whether measured against the statutory requirements of the Self Build and Custom Build Act 2015 (as amended) or the more extensive Build Store data. Where necessary I have started to call a specialist witness on this area, as very few LPAs properly address self-build. Some major housebuilders have concerns over self-build. There are legitimate health and safety concerns about self-builders working on major building sites. But custom build is often more realistic. In truth, LPAs should be allocating separate sites for all these needs, but the Government don’t seem very interested in doing this.
38. This was the approach the client was willing to accept for a 200 dwelling proposal at Lydney in the Forest of Dean Gloucestershire (Appeal 15), on a site which was not included in the neighbourhood plan. The scheme incorporated a range of proposal included land for self-builders, SME builders and for a locally run care home. Inspector Neil Pope recommended approval. The Secretary of State rejected that recommendation and dismissed the appeal. But we managed to get that decision quashed in the High Court. Second time round (appeal 32) Inspector David Rose again recommended approval. And this time the Secretary of State agreed.
39. As with the mountains of research which lie behind the affordable housing evidence, many of these ideas come from reading research documents and Government proposals set out in Green and White Papers, such as the excellent and informative 2017 Housing White Paper entitled Fixing our Broken Housing Market.

Conclusion

40. The present appeal statistics for housing do not make for comfortable reading. The overwhelming majority are refused, especially for smaller schemes of between 2 and 50 dwellings. In the midst of a national housing crisis and with the driving force behind many applications refused by LPAs being political rather than planning reasons that may seem rather disappointing. The result will of course depend on merits of each scheme and we all must respect an inspector’s reasons for that refusal. But what can be done is to make sure the benefits of the proposal, especially the affordable housing, are fully articulated. Not least because unless that is done, the voices of those in need of such housing are rarely heard.

Miscellaneous

41. Sometimes people ask me if I am on commission from Tetlow King. I should make clear I am not. Nor anything of the kind. What my developer clients want is to win an appeal. So what I encourage the clients to do is progress their appeal with the best evidence to support their case.
42. I have also done more than 50 appeals in the last seven years. Housing is a major part of my work, but not the only part. Other appeals have included proposals for retail, schools, rail freight, roadside service areas, employment development, logistics and an increasing number of ‘Extra Care’ and care home proposals. In addition, as my career has progressed, I have advised on ever larger strategic sites, which are not of the scale which go to appeal, including new settlements which mostly progress through the local plan process.
43. Appeals though remain a key part of the planning process, and as the table show, the 50 listed above have resulted in planning permission for nearly 6,659 new homes, all of which were opposed by local authorities. Of which 2,274 were affordable. That’s 34% of the total. An important statistic for those who still fail to recognise that greenfield sites, which is what most of these appeals concern, are the sites which deliver meaningful affordable housing for the increasing number of people in our society who desperately need it.

[1] These statistics cover the period February 2019 to September 2020 and were used for a discussion with Bridget Rosewell on Have We Got Planning News for You (2 October 2020): https://youtu.be/pPbDEGaLqnk see the question posed at 39 mins

[2] An appeal decision from Droitwich on the fields where I used to walk our Guide Dogs in training.

[3] It is important to record, the Secretary of State re-joined the proceedings after Richborough Estates secured permission to appeal to the Court of Appeal from Lord Justice Sullivan against the decision of Mrs Justice Lang decision in the High Court.

[4] Suffolk Coastal DC v Hopkins Homes and SSCLG: Richborough Estates v Cheshire East and SSCLG [2017] UKSC 37

Christopher Young KC View Profile