Gap policy accorded full weight after legal test

In allowing plans for more than 100 houses in Hampshire, an inspector has accepted that a policy seeking to maintain a gap between two settlements is not directed at restricting housing land supply.

200-004-253 (Image Credit Bryan Jezeph Consultancy Ltd)
200-004-253 (Image Credit Bryan Jezeph Consultancy Ltd)

The inspector considered the judgments in Wenman v Secretary of State for Communities and Local Government [2015] and South Northamptonshire v Secretary of State for Communities and Local Government [2014]. In the context of the South Northamptonshire ruling, he considered that Wenman clarified that policies might legitimately be categorised  into those that either expressly addressed housing or restricted development generally development and those designed to protect specific areas or features, including gaps between settlements, and which could sensibly exist regardless of the distribution of housing or other development.

A council policy sought to impose a general restriction on development in the countryside. Since the council was unable to demonstrate a five-year housing land supply, the inspector decided that the policy could not be considered up to date and should be disapplied, in accordance with paragraph 49 of the NPPF.

However, he found another policy seeking to maintain a gap between settlements less clear-cut, since it was not directed at all land outside the defined urban edge. He noted that the South Northamptonshire ruling established the principle that policies restricting development generally could in some circumstances be effectively seen as "counterpart" policies to those expressly concerned with housing land supply.

In his opinion, it could not be concluded that the aim of the council’s gap policy was to frustrate housing supply in non-urban areas. In accordance with the South Northamptonshire judgment, he concluded that it was not a counterpart housing supply policy. It had its own objective and was not simply complementary to housing supply policy, he found. On that basis, he gave this policy full weight.

The inspector held that it was not a matter for him to determine whether the gap had been correctly delineated. While recognising that the scheme would inevitably reduce the gap through the loss of paddocks, he questioned whether it would undermine the policy’s fundamental purpose to maintain the separation of the two settlements.

He found that the appeal site did not impinge on the narrowest point of the gap and that there was a lack of intervisibility between the two settlements. In his view, a broad area of countryside would be retained and the sense of separation would not be significantly compromised. He was convinced that the site comprised a valued landscape. He concluded that the harm caused by the scheme would not significantly and demonstrably outweigh its considerable social and economic benefits.

Inspector: Keith Manning; Inquiry

Comment: The South Northamptonshire ruling, refined in Wenman, established the principle that policies restricting development can, in some instances, be effectively seen as "counterpart" policies to those expressly relating to housing land supply. The rulings highlight a grey area over the linkage between development plan policies on housing supply and those aimed at protecting the countryside, and the relative weight each should carry under the NPPF. The taxonomical minefield this creates is seen in the inspector's remark that "varying degrees of currency relative to the framework could well be identified within a single policy, depending on its scope, construction and content".


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