Why the failure of two out of three councils to fix their housing land supply may deter others from trying

Of the first tranche of councils seeking to protect their housing land supply from appeal challenges for a year via a new policy route, only one has succeeded. Some observers say the difficulties experienced by this first wave may put off other authorities from embarking on the process this year.

PINS: Body rejects councils' efforts to fix housing land supply for a year
PINS: Body rejects councils' efforts to fix housing land supply for a year

Earlier this year, the Planning Inspectorate (PINS) published its decisions on the first three councils seeking to confirm their five-year housing supplies via the new annual position statement (APS) process. APSs were introduced in the 2018 revised National Planning Policy Framework (NPPF) and allow a local authority with a "recently adopted" plan to confirm its housing land supply position for a year. The concept was based on a recommendation by the 2016 Local Plan Expert Group (LPEG) to reduce the frequency of developers subjecting councils' land supply positions to costly appeal challenges.

Under the rules set out in national Planning Practice Guidance (PPG), councils must submit their draft statements by 31 July each year and PINS is meant to make its decision before the end of the following October. If a five-year supply is confirmed by an inspector, it cannot be challenged until 31 October the following year. According to the PPG, plans adopted between 1 May and 31 October are considered to have been recently adopted until 31 October of the following year.

In 2019, nine local authorities expressed an interest in engaging with the system, but just three – Wyre, Fylde and Mid Sussex councils – actually submitted statements. And of those, only one was approved by PINS. In a report published in January, PINS concluded that Wyre could demonstrate a five-year land supply. However, the inspector downgraded its proposed supply from 5.69 years to 5.18 years, after finding that ten sites allocated for the provision of 313 homes should be removed from its supply.

In contrast, PINS rejected Mid Sussex’s APS out of hand on the basis that the authority’s local plan had been adopted in March 2018 and therefore wasn’t "recently adopted". Fylde’s APS, meanwhile, was rejected on the basis that the inspector did not accept that it had demonstrated a five-year land supply. The council is seeking a judicial review of the decision after accusing the inspector examining its position statement of "unlawfully" ruling that that the authority must increase its local plan housing target because its land supply fell short.

David Thow, head of planning services at Wyre Council, said: "The decision provides the council and the community with certainty over the delivery of the local plan and future housing growth." However, he expressed some frustrations with the process. "The current guidance does not specify the level of engagement and information required to support the council’s APS submission," he said, adding that the timescales involved in preparing such a submission were "challenging". The council has yet to decide whether it would repeat the exercise this year, he said.

For some, the outcomes of the first three APSs to undergo inspection will serve to discourage others from engaging with the process. The fact that only one was approved means that the success rate currently stands at just 33 per cent, while the Fylde decision made it very clear that there is a substantial risk to submitting an APC.

"You’re exposing yourself to greater scrutiny," said Paul Forshaw, senior planner at consultancy Turley. "There is just too much risk involved – Fylde lost its five-year supply. Though [the APS policy] is still in the NPPF, I can’t see anyone bothering now." Planning Officers Society spokeswoman Nicky Linihan added: "Having seen the first three decisions, a significant amount of work is involved and with uncertain outcomes. That means that a lot of authorities may not have the capacity or the desire to take this route."

To a significant extent, councils were operating in the dark last year, some practitioners pointed out. The latest PPG on APSs was only published on 22 July 2019, just over a week before the 31 July deadline for submission. It confirmed both the definition of "recently adopted" and that local plans recently adopted under the 2012 NPPF would be eligible.

"Many local authorities that could have submitted an APS last year probably didn’t notify PINS originally because it wasn’t confirmed [in the July 2019 PPG] whether they could actually go ahead with the process," said Harry Bennett, a planner at consultancy Lichfields. "By the time this was clarified, it was already too late as either the LPA hadn’t already notified PINs or, if it had, they wouldn’t have had the time to prepare an APS. Wyre, Fylde and Mid-Sussex all took the risk in preparing their APSs."

On balance, Bennett said he thought that more authorities will submit APSs this year, but the Fylde outcome would mean that only those truly confident of their five-year land supply would do so. "APS examinations are exclusively about the question of whether a five year housing land supply exists," he said. "Quite simply, there is no hiding place."

Derek Stebbing, of consultancy Independent Plans and Examinations and a former LPEG member, said: "I believe that the principle of an APS remains sound [as it supports a plan-led system], but councils considering this route will need to learn quickly from the pitfalls and risks highlighted at each of the first three authorities. It's quite clear that it's not an easy path to follow, and PINS has set the bar at a high level."

From a developer’s or promoter’s perspective, the message from the three decisions is that engagement is crucial. The PPG requires councils to engage with developers and landowners in preparing an APS and states that inspectors would only consider information that has been formally submitted by parties, whether councils or developers. The Wyre and Fylde inspectors confirmed that position.

"Firstly, [developers] need to engage fully in an authority's APS engagement exercise, whether they are challenging or supporting an authority's position," said Stebbing. "And secondly, if supporting or reinforcing that position, they will need to demonstrate [site] deliverability. Hopes and promises are unlikely to be sufficient."

A PINS spokesman said: "Many local authorities have an up to date local plan which demonstrates their housing land supply for the next five years and they may therefore feel it is unnecessary to submit an APS. We appreciate the amount of work that goes into preparing an APS and the disappointment of not having the housing land supply confirmed. Our aim is to help local planning authorities ensure they can meet their future housing needs by undertaking a thorough examination of the APS and identifying issues which may need further consideration."

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