Need for up to date local development plans

by Dentons
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A recent appeal decision for 601 houses at Overtown confirms that unless Local Authorities keep local development plans up-to-date and demonstrate effective housing supply they will lose planning appeals, even on green belt land.

Background

A planning application for planning permission for a maximum of 601 homes, associated community uses and retail floorspace on green belt land at Overtown, North Lanarkshire was submitted in July 2015. The application was met with strong local opposition with over 100 objections including objections from two MSPs and one MP and no representations in support.

North Lanarkshire Council ("the Council") failed to determine the application and an appeal was lodged for non-determination. The Council stated it would have resolved to refuse the application due to, amongst other reasons, the location of the development on green belt land and the effect on the wider landscape.

Green belt vs. housing land supply

The appellant argued that the Council had failed to provide a 5-year housing land supply and therefore the North Lanarkshire Local Plan ("the LDP") must be regarded as out of date. According to the appellant, the 5-year shortfall in housing land supply was at least 2,188 units short of the total of 8,556 required across the Council district.

Paragraph 33 of Scottish Planning Policy ("SPP") states that where an LDP is out of date then the presumption in favour of development that contributes to sustainable development will be a significant material consideration. Approval of the appeal could only be withheld where there are adverse impacts which would significantly and demonstrably outweigh the benefits when assessed against the wider policies of SPP.

The Council disputed the appellant's district-wide approach for calculating housing land supply and contended that a housing market area approach for the Motherwell sub-market area was more appropriate. Adopting this approach, and taking into account sites identified in the Main Issues Report of the emerging LDP, the Council sought to demonstrate a significant supply surplus. Within the Motherwell sub-market area, the LDP placed considerable reliance on the deliverability of the South Wishaw Community Growth Area ("CGA"). The entire CGA site was located in an area with old mine workings and would need considerable remediation. As such, the emerging LDP had subsequently revised the CGA site's capacity from 900 to 75 units.

In addition, at the time of the appeal the emerging LDP was still at least 2 years away from adoption and when the Council undertook a further calculation based on updated figures from a 2015 Housing Demand and Needs Assessment and excluding the emerging LDP sites, there was still a shortfall of 682 units for the Motherwell sub-market area. While this was a smaller shortfall than the appellant's district-wide calculation, the Reporter considered that this "still confirms that there is a significant shortfall in the effective housing supply whether this is analysed on an authority-wide or a housing sub-market area basis".

Further to this, the Reporter considered that the amount of time remaining until adoption of the emerging LDP represented "a significant hiatus in the delivery of housing land, given the apparently ineffective status of sites allocated in the local plan…"

The Reporter concluded that the LDP was out of date, and that the SPP required that the determination of the appeal came down to whether the adverse consequences of the approval would outweigh the benefits of the development.

On recommending the appeal for approval, subject to a legal agreement related to education contributions mentioned below, the Reporter gave weight towards the contribution of the development towards the five-year housing land supply, despite the accepted impact on green belt. The Reporter noted that the development would conflict with green belt policy, would detract from the rural setting of the existing settlements and would cause harm to the landscape character and visual amenity. However, he did not believe this would significantly outweigh the benefits of the development and no matter what housing developments were delivered to meet the shortfall, "some adverse landscape and visual effects are very likely".

Planning Obligation

The parties disagreed about whether an education contribution would be necessary but ultimately it was agreed that there was no short-term education capacity constraint. The Reporter recommended approval of the development subject to a planning obligation requiring the education capacity to be reviewed prior to the completion of the 100th unit. The appellant would then pay a contribution based on an updated capacity report.

The appellant and the Council were unable to agree on the wording of the planning obligation so the appellant submitted a unilateral undertaking. The matter was then remitted back to the Reporter who determined that this unilateral undertaking was insufficient and therefore a condition was imposed requiring a planning obligation to be entered into prior to the occupation of the 100th residential unit.

No specific sum or methodology for calculating the education contribution was included within the condition. Therefore there is still dubiety about how much will require to be paid, if anything.

However, this does not make the condition unacceptable – as demonstrated by the appellant when it proposed the condition and referred to a previous appeal which was dealt with in the same way.

Due to the time spent attempting to negotiate the planning obligation, drafting the unilateral undertaking which was then rejected and the matter being remitted back to the Reporter, this contributed to the appeal decision taking 2 years to be determined.

Access

The Council also raised an issue about the proposed access to the development being unclear. The Council contended that the access provisions would not provide adequate sight lines. In addition, the local residents expressed concern about access being taken from an existing residential area. The appellant agreed to remove the proposed access from the existing residential area and this was accepted by the Reporter. The Reporter also clarified that access details would be covered by condition requiring approval as part of a reserved matters application.

Conclusion

This decision is a further reminder to Local Planning Authorities that they must keep their 5 year land supply up-to-date to ensure control of development within their authority area. Otherwise, as is the case here, development which would otherwise be unacceptable will be permitted. The Council had designated and relied upon one large site in the CGA to provide a substantial number of homes. The failure of this site to come forward has played a role in the Council changing its policy from allocating a small number of large scale sites to dispersing housing across a larger number of smaller sites.

While this development is located in an area of green belt land, due to the shortfall of housing land supply the housing policies of the LDP have to be considered as out of date. In which case, the presumption in favour for sustainable development is a significant material consideration. The determination of the development becomes a balancing act between the benefits of sustainable development against its adverse effects. Furthermore, paragraph 33 of SPP requires the adverse effects to "significantly and demonstrably" outweigh the benefits. In this instance the Reporter found that the adverse effects of development on green belt land did not meet this threshold.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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