Advice of C. Lockhart-Mummery Q.C.

1. I am asked to advise on a number of questions relating to the implications of Planning Policy Guidance Note 3: Housing (March 2000) for the future progress of proposed Policy SP11 (West of A1(M) at Stevenage) contained in the deposit draft of the North Hertfordshire District Local Plan No. 3 (February 2000).

A large number of questions is raised in my Instructions. Most will be answered in the body of my main conclusions. In the light of those conclusions, some questions fall away. Others overlap. I will endeavour to cross-refer to certain of the questions, where appropriate.

2. One cannot underestimate the fundamental implications of the new PPG3. The covering letter to PPG3 announces that it:-

The preface indicates that this fundamental change will mean, for most authorities, that their development plan will require early review and alteration in respect of housing.

The essential requirements of the new guidance, relevant to the present questions, are as follows.

First, all local planning authorities are henceforth obliged to undertake urban housing capacity studies (paragraph 24).

Second, it is recommended that, in undertaking those studies, local planning authorities may wish to follow the principles laid down in the Department’s good practice guidance. This is a reference to the, as yet unpublished, Tapping the Potential: Best Practice in Assessing Housing capacity (2000).

Third, with the results of the urban housing capacity study available, authorities should allocate land for housing in local plans following a search sequence, starting with the re-use of previously-developed land and buildings within urban areas. (Paragraph 30).

Fourth, the release of sites (governed by phasing policies in the local plan and the exercise of development control) is to be phased in accordance with the advice in paragraphs 32 and 33.

Fifth, allocations in adopted local plans are to be urgently reviewed, in accordance with the guidance in PPG3 (paragraph 37).

3. Hertfordshire Structure Plan Review 1999-2011 (April 1998)

While certain of the threads in PPG3 (the carrying out of urban capacity studies, and the preference to focus development in and around urban areas) have been common currency for some time, it is common ground that the approved Structure Plan does not reflect the implications of PPG3.

The work on urban capacity which formed part of the evolution of the Structure Plan was largely reliant on the Chesterton Report ("Dwelling Provision through Planned Regeneration"). This was essentially based on a series of limited case studies, the results of which were extrapolated on a county-wide basis. There was no country-wide survey of urban capacity. The Panel following the EIP reported (paragraph 4.43) that the report was "not a reliable assessment of regeneration potential". The Panel ultimately selected Chesterton’s pessimistic assumption (excluding employment land) of 8,200 units, in contrast to its optimistic assumption of 18,700 units.

Further, the County Council did not follow the search sequence in the rigorous manner now prescribed by PPG3. It intended, originally, to provide most of the 21,000 dwelling shortfall through the main strategy of planned regeneration within existing urban areas. It was reluctantly recognised that substantial greenfield allocations would be also necessary. The selection of the strategic allocation west of A1 was made, having regard to the perceived sustainability attributes of this location, but without the rigorous analysis of peripheral growth which would now be required. The extent of the then national policy constraints (or rather, perhaps, lack of opportunities) is expressly recognised in the Explanatory Memorandum. There is there recognised (paragraph 154) the "...barriers to pursuing such an approach through the current planning process and in the context of existing national planning guidance. The implementation tools available to local authorities and others are also somewhat lacking". Paragraph 155(ii) urges Government to tackle obstacles in the way of promoting planned regeneration, particularly by making the national, regional and local planning processes more supportive. PPG3 is manifestly a key element in the greater support then sought.

4. The Deposit Local Plan

My Instructions recognise the position in terms:-

The Council undertook an urban capacity study in 1999. This followed the issue of draft revised PPG3, but did not take its contents fully into account. It is recognised that this study was less rigorous than PPG3 would now require.

This should not form the basis for any criticism of the Council. Draft PPG3 was a consultation document, it did not represent policy, and was liable to change (and did change) when issued as policy a year later.

Accordingly (question 3, part 2), and not surprisingly, the Council has not already satisfied the requirements of PPG3 in this respect.

5. In my opinion, the above matters raise profound implications for the future of the Deposit Local Plan.

The full force of the position is seen by a reminder of the contents of paragraph 37 of PPG3. If the current Deposit Local Plan had recently been adopted, there would need to be an urgent review of the Plan, following the assessment (urban capacity and search sequence) required by PPG3. Here, we are at the much earlier stage of emerging draft proposals; they are hugely controversial; it is contended (correctly) by objectors that the content of the present Deposit Plan is non-compliant with PPG3.

In those circumstances, it cannot be rational to pursue non-compliant proposals to an inevitably hotly contested local plan inquiry a year hence, when the whole position can (once the urban capacity advice is issued) be re-assessed in accordance with PPG3. The position is far removed from the "simple"question as to whether one should retain, or delete, the proposals in Policy SP11. No-one can anticipate the results of the urban capacity study. That there may be scope for significant additional urban/brownfield site development is self-evident from the scale of the range between the optimistic and pessimistic assumptions previously advised by Chestertons. Once a more realistic urban/brownfield capacity has been identified, a residual greenfield requirement will be assessed. A search sequence exercise must then be undertaken. The solution most compliant with PPG3 may be - whether on a county-wide or district-wide basis - a greater focus on peripheral development around a number of towns and settlements in each area. Alternatively, the preferred solution might remain in favour of a significant allocation to the west of A1(M). At this stage, one can only speculate as to the preferred solution.

6. Accordingly, in the interests of the proper forward planning of the county and the district, it is hard to see how it can be appropriate to continue, at this stage, to promote the Deposit Local Plan in its present form. The logical course must be now to withdraw, and carry out the work explicitly required by PPG3.

7. The suggestion was canvassed, as an alternative to withdrawal, of undertaking the work required, and then moving to a revised (2^nd) deposit draft, which would take account of such work. Such a course may be theoretically possible, but does not appear to me to be appropriate. The purpose of the new procedures is to provide a further opportunity (prior to the local plan inquiry) for the authority to respond to objections by revisions they think appropriate. See PPG12, paragraphs 2.14-15, and Annex B paragraphs 9-12. What is contemplated here is less a response to objections, but rather a dispassionate review of the whole position in the light of PPG3. Further, the upshot of the review could result (see above) in a significantly different strategy towards housing land provision. Such strategy, if it emerged, would again be in the light of the PPG3 review, rather than by way of a response to duly made objections to the first deposit draft.

8. I find it hard to accept some of the logic in the comments of the letter dated 16^th May 2000 to Peter Lilley MP from the Parliamentary Under Secretary of State at the DETR. These comments include the following:-

This appears to be the antithesis of what PPG3 is seeking, namely, the earliest possible adaptation of development plans so that they may accord with that guidance. It is not necessary or appropriate to promote a plan which is non-compliant with PPG3. It is illogical to continue to promote such a plan to a local plan inquiry in mid-2001, when it is already appreciated that the local plan is non-compliant. The results of the urban capacity studies will appear at approximately the same time. The course suggested in the letter cannot be an appropriate use of the development plan framework (question 20).

9. In considering whether or not to withdraw the deposit Local Plan, the Council will plainly have to give full consideration to all the implications of such a decision. Without attempting in any way to list all the implications of a decision to withdraw, they would plainly include the effect on housing land supply, the potential effect on housing needs, the potential effect upon the relationship between meeting housing needs, and economic and employment considerations, and the substantial amount of work already undertaken by all relevant parties, including developers, towards the anticipated development west of A1. These will have to be balanced against the factors outlined above, and the potentially greater damaging implications of pursuing a plan which has not taken PPG3 into account.

10. I am acutely conscious of the difficulties posed in taking a course which appears to me to be the only rational one available. These are difficulties not of the Council’s making. They are implicit in PPG3, and must plainly have been recognised by Government.

The difficulties include:-

11. I turn to consider the specific questions raised in my Instructions, so far as relevant and not answered above.

Question 1. Does PPG3 supersede the policies and proposals of the Structure Plan?

See above. It plainly may do so in relation to Policy 8 (and the 2,600 dwelling element of the 10,400 in Policy 9).

Question 2. Does PPG3 have the effect of requiring NHDC to:

Yes, see above.

Question 3 (first part). In carrying out this urban housing capacity study, how closely does NHDC have to follow the methodology outlined by PPG3?

As closely as possible.

Questions 5 and 6 raise points concerning the "negative consequences" of proceeding with or withdrawing the deposit local plan, and the actions which might be taken by interested parties. Plainly there are negative consequences involved in either decision, the principal ones being outlined above. Any decision to withdraw must balance the advantages of complying with PPG3 against the delay and uncertainty caused to developers, for example. It will be for the Council (and the County Council) to balance all the relevant factors, but to reach the decision most likely to deliver the objectives of PPG3.

Question 7. To what extent is it rather the responsibility of HCC to take account of PPG3?

It is the responsibility of both HCC and NHDC.

Question 8. Is it more appropriate for NHDC to continue with the draft Local Plan and following the review of the Structure Plan to incorporate strategic changes that take account of PPG3 in a future review or alteration of the Local Plan?

No. See above. The time to address the requirements of PPG3 is now.

Question 10. With the emphasis in PPG3 on Plan, Monitor and Manage is the evidence of under-provision a valid basis for NHDC to withhold planning permissions on greenfield sites when there is evidence of under-provision of dwellings in relation to the average rate of new dwellings being provided?

In consultation, it became clear that this question really relates to the allocated development site at North East Stevenage (within NHDC’s area). This is an existing allocation in the adopted Local Plan, and raises quite different considerations to those obtaining at west of A1. Planning permission exists for 900 dwellings, of which 230 have been completed, and 199 are under construction. There is a planning application for the remaining element of some 500 dwellings. The existing committed development (900) has been planned upon the basis of an ultimate community of some 1,400 dwellings. The current planning application is, effectively, for the completion of an existing planned neighbourhood.

Plainly, in the consideration of that planning application, paragraphs 38, and then paragraphs 31-32, of PPG3 apply. It will be for the Council to weigh all the planning considerations arising. One of those considerations will be the difficult land supply position. It could be a reasonable conclusion that planning permission should be granted. It is possible that, by the time the matter arises, the Secretary of State will have issued the Direction anticipated in paragraph 39 of PPG3. However that may be, the position at this site is conceptually completely different to that at the west of A1.

Question 11. Is it reasonable for NHDC to refuse planning applications on greenfield sites that are (a) identified in the adopted local plan, or (b) identified as a strategic housing allocation in the structure plan and included in an emerging draft local plan?

Yes - PPG3 so anticipates.

Question 12. Is it appropriate for NHDC...(ii) to wait for revised RPG and structure plan in order to alter the draft local plan and plan for period 2006-2011?

This is a difficult question of judgment, which cannot be answered immediately. I have already referred above to the difficult timing question between the need to re-deposit the Local Plan as soon as possible in the light of a proper PPG3 assessment, and the County-wide considerations which will culminate in the Structure Plan Review. At present, I would incline to confining the Plan period to 2011.

Question 13. If NHDC delays the Local Plan review process, is it unreasonable to refuse a planning application received in the meantime on the grounds of prematurity [for west of A1]?

Plainly not.

Question 17. For the smaller greenfield sites (not originally proposed as strategic allocations) identified as proposal sites within the urban areas in the draft local plan, must NHDC follow the approach set out in paragraph 38 of PPG3 as the appropriate interim measure? Namely, should it compare the sites with other available previously developed sites identified in accordance with paragraphs 30 and 31 and in light of the presumption in paragraph 32?

Yes. In considering these matters, the Council should have regard to the indicative threshold of 5 hectares/150 dwellings referred to in paragraph 39 of PPG3.

Question 18. Is it unreasonable for the Council to refuse an application [relating to west of A1] on the ground that it does not provide for sufficiently high housing density (if it provides an average of 40 per hectare)?

I can see little, if any, basis for such a refusal, since the suggested density falls squarely within the range recommended in paragraph 58 of PPG3.

Question 19. Might NHDC be justified in approving reserved matters applications with a housing density of less than 30 dwellings per hectare, as long as it is satisfied that the overall average densities will meet the advice given in PPG3?

Yes. Indeed, the inclusion of land at low densities would accord with the objectives of providing for range and choice, and meeting the needs of all sectors of the community.

Question 22. To what extent do Policies 5 and 8 of the Structure Plan amount to a strategic allocation of 5,000 dwellings?

Question 23: Could the Council be justified in refusing an application for 5,000, rather than 3,600, on the grounds of prematurity even if it were restricted by a section 106 agreement to complete no more than 3,600 by 2011?

I have previously advised that the effect of Policies 5 and 8 of the Structure Plan is to amount to a strategic allocation of 5,000 dwellings. Accordingly, I could see no ground for refusing the application described in question 23 (apart, of course, from the more fundamental matters discussed earlier in this Advice).

C. Lockhart-Mummery Q.C.

4 Breams Buildings

London EC4A 1AQ

7^th July 2000