The most frequent, and most successful, housing appellants

Risk – the single word commentators say is the key factor in determining a firm’s strategy to submitting appeals. This is reflected by the prominence of strategic land companies, which promote land through the planning system to achieve allocations and permissions, in this year’s list of the most frequent appellants against refusal of housing schemes.

Developer: special report probes appeal rates (pic: Getty)
Developer: special report probes appeal rates (pic: Getty)

As we did last year, Planning examined data provided by our sister service COMPASS Online, on appeals for housing schemes in England. But this year, we used a threshold of appeals for five homes or more (ten last year), and whereas last year we looked at the period since the 2012 publication of the National Planning Policy Framework, this time we focused on the three years since April 2017, to examine the very latest trends.

GLADMAN DEVELOPMENTS



This year, the list of most frequent appellants is once again topped by Gladman Developments. The firm’s continued prominence can be explained partly by the fact that it is the largest player in the land promotion market. While it comfortably tops the overall list, it is even more dominant among land promoters. According to practitioners, appeals submitted by land promoters are typically related to outline applications, and they are generally associated with the principle of development rather than detailed issues. Analysis of the appeals list for Gladman backs this up. Of the firm’s 95 appeals that meet the criteria for inclusion during the period, the vast majority related to outline applications. Eighty of its 95 appeals related to sites with an address starting with “Land off” or a similar prefix, indicating a predominance of greenfield sites. Despite Gladman’s position at the top of the list, the company’s appeal numbers fell significantly during the course of the three years. Gladman declined to comment for this article, but the figures chime with the firm’s recent statement that it is stepping back from lodging high numbers of appeals, citing a weakening of the presumption in favour of sustainable development. Christopher Young QC, of No5 Barristers’ Chambers, says the company is still submitting appeals, but is being “more circumspect” about doing so. This reflects the fact that winning appeals for major housing schemes appears to be becoming harder, he says. Derek Stebbing, a consultant at Intelligent Plans and Examinations, agrees that Gladman’s figures are a reflection of a wider trend. “It is the promoters at the moment that are more disinclined to appeal,” he says. “This is due to a combination of factors, but I detect that the presumption in favour of sustainable development is becoming increasingly difficult to satisfy in full.” This, he says, is due to factors such as more councils having a recently-adopted local plan in place, more councils being able to demonstrate a five-year housing land supply and councils being able to demonstrate a reasonable track record on housing delivery.


The most frequent appellants 2019-20


CHURCHILL RETIREMENT LIVING


In contrast to Gladman, the majority of Churchill Retirement Living’s appeals that met the criteria were hearings or written representations, and all related to full, not outline, applications. The typical address for the firm’s appeals also suggests that small brownfield sites predominate, with former sports centres, council offices and factories featuring alongside infill sites, hotels and builders’ yards. The company offers a bespoke product, which leads to the need for a high level of appeals, according to chairman and chief executive Spencer McCarthy. “The appeal process is an important part of our planning strategy due to a frequent lack of understanding of the specialist nature of our product,” he says. McCarthy claims that the firm’s products are “often considered like-for-like against mainstream housing, rather than as a specialist product”. This, he argues, can lead to “misunderstanding and conflict at a local level, for example around the level of car parking or amenity space we provide, which reflects the needs of our older customer base”. Other factors disputed in Churchill Retirement Living’s appeals are viability considerations and others that McCarthy says are “unique to our developments”, such as higher build costs and slower sales rates compared to mainstream housing.

PERSIMMON


Persimmon, one of the UK’s largest housebuilders, saw 22 qualifying appeals determined during the three-year period, although the figure fell sharply from 12 in 2017-18 to six in 2019-20. During the period, 16 of the firm’s appeals went to inquiry and one was recovered for determination by the secretary of state, with just three hearings and two written representation appeals. The appeals were related to a mixture of outline and full planning applications. Like Gladman’s cases, the addresses for the appeals submitted by Persimmon indicate a high proportion of greenfield sites, with all bar one having a “land off” or similar prefix. Appeals submitted by volume housebuilders typically relate to a range of detailed issues, as well as potentially the principle of development, say practitioners, whereas those lodged by land promoters generally focus solely on the principle of development. “The volume housebuilders are running into issues such as the housing mix, site layout, affordable housing and other infrastructure provision,” says Stebbing.

McCARTHY & STONE


Another frequent appellant from the retirement homes sector is McCarthy & Stone, with 21 qualifying appeals determined during the period. As with Churchill Retirement Living’s cases, the appeal addresses reflect the firm’s brownfield focus, with locations including a former British Legion club, car garages, a police station and other individual addresses. McCarthy & Stone group land and planning director Gary Day says the typology of the firm’s sites, together with its high volume of output, is key to explaining its frequent appellant status. “The typical size of our sites is an acre and 44 units on average,” he says. “So in order to get to the volume we get to, we have to buy a lot of sites.” “Our sites are all centrally-located urban brownfield sites, often with an existing use,” he adds. “They are often sites that the council wants to preserve for other uses, such as employment, and they are sites where there is going to be a lot of neighbour interest.” Compounding all these issues is the attitude of local authorities towards retirement housing, says Day. “It is a product that local authorities often don’t believe in, understand or appreciate,” he says.

BARRATT DEVELOPMENTS/BELLWAY


Two of the major volume housebuilders complete the top five of the frequent appellants list, with Barratt Developments and Bellway in joint fifth place at 16 qualifying appeals each. For both companies, the appeals related to a mix of outline and full applications, with most being conducted by inquiry or recovered by the secretary of state. Barratt Developments group land and planning director Philip Barnes says the appeals option is not the firm’s preferred route. “Our preference is always to secure a local plan allocation for the sites we secure without a prior planning permission,” he adds. “A planning appeal is a worst-case option, especially as it seems that the Planning Inspectorate is perhaps less willing to support housing appeals than previously. “We tend to appeal where the local plan has been delayed or where we feel the scheme complies with policy but the council members disagree.”

OTHER NOTABLE APPELLANTS/ GENERAL FINDINGS


Three other firms saw ten or more qualifying appeals determined during 2017-20. These were Gleeson Homes, CALA Homes and Redrow. Taylor Wimpey was the fourth most frequent appellant in last year’s survey, but is in joint tenth place this year, with nine appeals that met the criteria in the three-year period.

A number of land promoters appear in the list, including Site Plan UK, Hollins Strategic Land, Catesby Estates, Richborough Estates, Galliford Try and Hallam Land Management.

Overall, the results show 31 firms or organisations that had six or more appeals for such schemes determined during this three-year period. But some large housebuilders, such as Berkeley Group and Countryside, are absent from the list. Whether or not a company will be a frequent appellant will depend on a variety of factors, but one theme is dominant, according to practitioners. “It comes down to the business model and risk,” says Jane Healey-Brown, associate director at consultancy Arup. “For some companies, their risk model allows for a higher number of appeals and of sites not going forward – it will be factored into their risk model and landowner deal.”

Young says the varying approaches to risk is “absolutely critical” in deciding a firm's appeals strategy. “Some companies are very risk-averse and will rarely go to appeal. They will first ask their barrister whether they have very good prospects of success,” he says. “Other companies may only be looking for a 50 per cent chance of success before proceeding with an appeal and will be more willing to promote sites which are more risky.” Healey-Brown also points out that some companies may be operating predominantly in areas of the south of England with higher land values, and thus increased development costs, making the prospect of incurring further costs through the appeal process unpalatable. “Increased land value makes a big difference,” she says.

The results show that high-volume housebuilders tend to have a higher than average success rate at appeals, with Taylor Wimpey topping the list at 78 per cent, followed by Bellway (75 per cent) and Persimmon (68 per cent). Land promoters tend to have lower success rates, with Hollins Strategic Land having the highest at 62.5 per cent, followed by Hallam Land Management at 57 per cent and all others below 50 per cent.

Commentators suggest that this is a reflection of the different business models between the different types of firm. “As our members are seeking to establish the principle of development, these cases are materially different to those where housebuilders or developers are applying for reserved matters consent,” says David Morris, technical and policy committee member at industry body the Land Promoters and Developers Federation, which represents strategic land companies. “The principle of development on the site has already been established, which means the debate is much more about detailed issues such as design, rather than the in-principle objections to the development per se faced by land promoters.”

He adds: “Unfortunately, seeking to obtain outline planning permission on greenfield sites remains the most controversial part of housing supply, as evidenced by the time taken by local authorities to make difficult decisions themselves in releasing such sites for development.” Young says a greater aversion to risk from the housebuilding firms can sometimes mean that these companies “are happy to acquire sites through the market” from land promoters. “Generally, land promoters will take on more risky sites than the housebuilders and that’s why a lot of housebuilders are at the top of the list for success rates,” he says.

Healey-Brown says it is “quite a concern” that retirement homes developers feature so strongly in the frequent appellants list, and argues that this represents a challenge for local authorities to address. “Even in the pre-COVID-19 world, older people’s housing in town centres represented an obvious opportunity, because those sorts of places provide access to facilities and public transport hubs and they would really lend themselves to that sort of development,” she adds.

Young says the potential for the growth of the retirement homes sector is “enormous”, but warns that there is a lack of recognition for its role in local plans, adding: “There is very rarely a policy supporting it in the local plan and it is even rarer to have site allocations for that purpose.”

OTHER KEY FINDINGS IN HOUSING APPEAL STATISTICS FOR THE PERIOD

The overall figures indicate that the numbers of appeals against refusals of schemes of five homes or more being determined has increased in 2019-20 compared with 2017-18, but the proportion of these that were allowed has dropped considerably, from 34 per cent in 2017-18 to 29.4 per cent in 2018-19 and to 26 per cent in 2019-20.

The regional appeals figures show that the South East is comfortably the region with the highest number of appeals for five or more homes, followed by London, then the East of England and the South West.

Among authorities that saw ten or more such appeals against their decisions determined during the period, those with the largest percentage overturned were North East Derbyshire (67 per cent), Arun (60 per cent) and Sefton and Welwyn Hatfield (both 57 per cent).

Those that saw the lowest percentage overturned were Runnymede, Broxbourne and South Norfolk, all of which had no appeals allowed, followed by Luton with just six per cent.

Healey-Brown says good monitoring is crucial for local authorities in housing appeals. She asks:“Do they have good technical data on their housing land supply, and what is the transparency of the data behind that?”

Stebbing says local authorities are “very conscious of the need to be able to demonstrate a five-year land supply”. Lack of a five-year supply, he adds, is “a better card to have in an appellant’s pocket” than the presumption in favour of sustainable development.

Correction: This article was amended at 2.30pm on 26 May 2020 to make clear that Christopher Young QC's comment about varying approaches to risk being “absolutely critical” in deciding a firm's appeals strategy was a general comment, rather than a comment specifically about Arup.


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