Agenda item

To recommend to Council that the Interim Housing Position Statement be approved and published to explain the Council’s approach to decision-making on planning applications involving the provision of housing and that authority be delegated to the Associate Director: Planning, in consultation with the Lead Member for Built Environment, to make any necessary minor amendments and corrections to the document prior to publication.

That it be RECOMMENDED TO COUNCIL:

1. That the Interim Housing Position Statement be APPROVED and published to explain the Council’s approach to decision-making on planning applications involving the provision of housing.
2. That authority be delegated to the Associate Director: Planning, in consultation with the Lead Member for Built Environment, to make any necessary minor amendments and corrections to the document prior to publication. 

48.1           The report of the Interim Planning Policy Manager, circulated at Pages No. 123-135, attached, at Appendix 1, a draft Interim Housing Position Statement to provide informal guidance in clarifying the Council’s approach to decision making for applicants and the community in the absence of being able to demonstrate a five year housing land supply.

48.2           The Lead Member Built Environment indicated that this Agenda item was in response to the recent Planning Inspectorate appeal decisions that confirmed Tewkesbury Borough Council was now unable to demonstrate a five year housing land supply.  Members had previously received informal briefings on this issue, including discussing the consequences of applying the “tilted balance” to planning decisions on housing applications, in line with the National Planning Policy Framework (NPPF) rules; however, this was a highly technical area and one which often gave rise to confusion and concern amongst communities, members of the public and even some developers.  The situation was often mischaracterised as one where the local plan policies were out of date and planning permissions for housing had to be granted but the truth was much more measured. The NPPF certainly introduced a presumption in favour of granting sustainable development for many - although not all - housing applications as a result of the shortfall.  This meant that policies on matters such as settlement boundaries were to be treated as out-of-date and the overall outcome must be that more approvals were given in order to generate the deliverable sites to make up the shortfall.  Nevertheless, the starting point for making decisions was the policies in the development plan, many of which remained fully up to date. In judging whether in an individual case the adverse impacts would “significantly and demonstrably” outweigh the benefits, it was still necessary to consider the Joint Core Strategy, Tewkesbury Borough Plan and relevant Neighbourhood Development Plan policies which were an important part of that balancing exercise.  This meant looking carefully at important matters such as highway safety, unneighbourly amenity impacts, design and layout, accessibility, harm to valued landscapes and so on.  With all this in mind, it was considered it would be helpful to publish an Interim Housing Position Statement clarifying the position in some detail, and this was set out at Appendix 1 to the report.  One of its purposes was to confirm there was a housing shortfall, and to acknowledge the need to remedy that, but it also highlighted the types of location and housing schemes which were more likely to be considered acceptable by the Council, and by appeal Inspectors, in making up the shortfall under the tilted balance.  The document also pointed to actions the Council could take, and encourage others to take, in approving and building out suitable housing schemes as quickly and effectively as possible, for example, encouraging early engagement with Parish Councils and seeking pre-application advice from Planning Officers as well as considering attaching conditions to planning permissions requiring development to be commenced more quickly than the standard timescales.  It was important to be clear that the document was not in any way new “policy”; instead, it succinctly clarified the existing policy and practice and provided reassurance to communities that good quality development remained the expected standard at all times.  On that basis, it was being recommended to Council that the document be approved and published.  As it was not policy, formal public consultation was not necessary; however, a briefing for Town and Parish Councils had been arranged for that evening and a summary of any views raised could be provided to all Members.  She indicated that she had asked for a minor amendment to be made to Page No. 134, Paragraph 4.2 of the report prior to publication to state: “In bringing forward future applications, the Council would encourage applicants to undertake early and meaningful engagement with relevant Ward Members, Town and Parish Councils, the local community and relevant stakeholders regarding their proposals for development”.

48.3           A Member recognised the Council could not demonstrate a five year housing land supply and the need to publish a statement in relation to that; however, he was concerned as to how the situation would be monitored in terms of understanding how many more houses needed to be delivered in order to be able to demonstrate a five year supply.  There was suggestion of reviewing the situation after one year but he felt that more active monitoring was necessary.  The Lead Member for Built Environment clarified that planning applications would continue to be determined based on sound planning grounds.  It was her understanding that the five year housing land supply was a rolling calculation but she believed Officers would be monitoring the situation closely.  The Associate Director: Planning advised that there were elements to consider; as the Lead Member had alluded to, it was a moving picture and, unfortunately, even the reported picture the Council had recently published as at March/April 2023 would no longer be accurate as more planning consents had been granted and there may also be sites where the developers position had changed in relation to bringing forward a scheme in a particular area.  In addition, the other practical challenge would be the resources needed for more regular monitoring weighed against the benefits of undertaking the activity – to track in live terms would require a dedicated full-time Officer who would need to be in constant dialogue with developers, tracking both the large and small schemes.  Page No. 135 of the report included a section on future review of the statement which set out that monitoring would take place periodically and no later than 12 months following adoption – there was nothing to say it would not be reviewed before that if, for example, there was a considerable amount of development consented in the meantime.  For an authority the size of Tewkesbury Borough, and for most authorities generally, it would probably never be feasible to do more than an annual review of the housing land supply position; even if it was calculated prior to that, for instance, to ensure evidence was up-to-date for an appeal, it would not be the published position consistent with the NPPF, therefore, it was conceivable that an Inspector would not place too much emphasis on a ‘between the lines’ position.  Whilst Officers would informally track the position, given the order of the shortfall, it was highly unlikely it would be addressed in year so the interim position would be for at least 12 months in reality.  The Member recognised the lack of resources to be able to monitor the situation and expressed the view that this was part of the problem  - the authority was not spending money on ensuring that everyone knew what the housing figures were as demonstrated by the inability to demonstrate a five year housing land supply less than 12 months after the Tewkesbury Borough Plan was approved.  This was of great importance to constituents as it was possible that, without regular monitoring, more planning permissions would be granted than would normally be the case and he questioned whether more resources needed to be put in for that purpose.  The Chair reiterated that, given the shortfall that was faced, even with monthly or weekly monitoring, the situation was unlikely to change – if the authority did end up with a five year housing land supply within six months it would not be useable as calculations were done on a 12 month rolling basis so this would not change the outcome of appeal decisions and how applications were viewed by Inspectors.  In terms of the historic situation, there had been a number of significant concerns about the five year housing land supply and there were questions over why the strategic plan had been put on the backburner in favour of the local plan – these should have been done the other way around, hence why work was commencing on the Strategic and Local Plan.  There was a new Leadership Team in place and it was clear that Members were now being given the uncomfortable truths, which had not necessarily happened in the past, so there was renewed confidence in the team as well as oversight and assurance from an active Lead Member.

48.4           A Member queried who the document was aimed at; if it was meant to reassure residents there was nothing about the Council defending its position and how it would work towards establishing a five year housing land supply and therefore had no statement of intent.  The Chair advised it was not a document to reassure, rather its purpose was to ensure the Council could defend appeals and reduce the risk of costs being awarded against it by stating the expectation in terms of developments coming forward.  He drew attention to Page No. 130, Paragraph 1.5 of the report which set out that no specific actions were required other than the application of the tilted balance and that the Council recognised the pressing need to reestablish a satisfactory housing supply position.  The Associate Director: Planning explained that the Council had recently lost a number of appeals and, at the most recent of those, the Inspector had labelled the Council’s position bizarre in terms of its approach to the housing land supply and referred to the improper use of public money and expense incurred by the private industry in challenging the case.  The approach set out in the document would allow Officers to give the Planning Committee a stronger steer in terms of the likely success of an appeal which would filter through into more consents being granted to supplement the housing land supply and ensure the Council would be able to uphold its position on those grounds which did not meet local planning policy, or if there was an identified harm which outweighed the benefits.  It was not a communication document to provide assurance, it was an attempt to be honest and state the position and what the authority was proposing to do; it had to stop short of stating there would be a five year housing land supply by a certain time as it was unclear how successful forthcoming appeals would be.  If the Council was still unable to demonstrate a five year housing land supply in 12 months there may be a subsequent iteration of the document aligned to the plan-making process which could potentially go further in terms of action and response to supplement supply.  As the new local plan gained assent, it may be appropriate to look at actual sites and say something more positive but that was not possible at the moment.  Other Councils produced this type of document in these situations so it was not wholly unusual and it was felt it was better for the authority to set out its stall.  The Interim Planning Policy Manager indicated that the document had an important message on a complex topic; the tilted balance was not mentioned anywhere in the NPPF and was nuanced and complicated.  The Council had a housing land supply shortfall which needed to be remedied and some potential applicants may think that meant the authority had an obligation to grant planning permission for housing, which was worrying for Town and Parish Councils and residents – the document aimed to put in a succinct way, without introducing new policy, that was not the position; the shortfall needed to be addressed but it was not a free for all. 

48.5           A Member welcomed the addition of the amendment suggested by the Lead Member in terms of working with local Ward Members and Town and Parish Councils from the outset as, regardless of the five year housing land supply position, they knew what residents would object to in terms of planning and this would give more reassurance that Ward Members may be able to have an input which would ease concern for residents.  Another Member indicated that people just wanted to know how many houses needed to be built and when the Council would have a five year housing land supply; she recognised this was not simple and was pleased to hear it would not be a free for all but she was perplexed as to why there was no simple IT solution in terms of monitoring.  The Chief Executive reiterated there were a number of variables and it might be possible to map some of those for Members so that, when asked by residents, they would be able to explain what those were along with context as to why it was not possible to monitor the situation in real time. The Associate Director: Planning pointed out that developers were under no obligation to respond to requests for information and, once planning permission had been granted, Officers were often dealing with the people managing the site rather than an agent and there was little incentive for them to provide information.  The government had recently enacted changes via the Levelling Up and Regeneration Act 2023 which meant the Council would be able to take account of developers’ track records in delivery when granting planning permission; however, as planning permission was granted to the land, not the person applying, its effectiveness as a measure to address land banking was questionable.

48.6           A Member indicated that, prior to publication, he would like to see an amendment to Page No. 133, Paragraph 3.7, Point 7 of the report, to read: “Development which would be located in areas at lowest risk of flooding and not lead to increased flood risk elsewhere”.  Another Member indicated that, in her experience, Parish Councils wanted greater involvement with developers but found that they would only deal with Planning Officers.  In response, the Chair advised that it did happen, albeit not enough, for instance, Stoke Orchard Parish Council had worked very closely with developers in the area which had resulted in a fantastic community building.  When developers were engaged with Parish Councils, the planning application often had a smoother journey through the planning system so, when it did happen it was successful but the Member was right in saying it did not happen enough.  The Chief Executive advised that the document was for the development industry and to serve as an aide memoire to Officers in terms of how to determine applications, for instance, to ensure engagement with local Ward Members – this was best practice regardless of the five year housing land supply position and one of the early tests of its success would be whether local Ward Members knew about applications in their areas and if they had been engaged during the process.  The Associate Director: Planning indicated that the NPPF encouraged early engagement on development and this was one way of mitigating risk; objections would still be received but it put the applicant, the Local Planning Authority and the community in a position where there was a prospect of issues being aired and a correct understanding of the application being determined – it did not automatically follow that planning permission would not be granted if that approach was not followed but setting out the expectations could add value and would hopefully mean there would be fewer objections.

48.7           Upon being proposed and seconded, it was