#LURB - the end of 5 year housing land supply?
Here we are, right on the cusp of summer. The sun ablaze. Sliding into strawberries and cream season. Is it time for some Pimm’s? Well, it might be so long as you weren’t managing the day-to-day dramas of a 3 month old. But enough about me: if you folks are after reading material for all that sunbathing in the park, have at it. Dig right into the Government’s propsals to reform the planning system.
It’s Friday: we’re in #LURB. As Hugh Grant may’ve said: it’s LURB, actually. It must be LURB. Can’t buy me LURB. All you need is LURB. [Stop. Please. Just stop, Ed.]. Well, all you really need is:
My quick hit take as the ink on the bill was still drying on the new test LURB proposes at the heart of the planning system;
My 10 questions with Simon Gallagher at the Department on some of LURB’s big hitting provisions;
And, if you’ve an hour spare, a discussion with me Simon, Kathryn Ventham and the good folks at Town Legal on whether LURB will actually deliver more housing.
In other news, to make sure you’re keeping up:
Some of us saps were misled by Michael Gove saying there’d be a new NPPF next month into thinking that… there’d be a new NPPF next month. Ha. Fools! Deep breath. There won’t be. Instead, we’re getting a “prospectus” which will set out the intended direction of travel for the new NPPF.
More proposals to delay plan-making (😬 - a theme we moan about a lot in this parish: e.g. here) and, just as we feared, Councils are now citing LURB as a reason to slow down their plan-making: see e.g. this report from Thanet. Heaven help us. There’s no doubt about it: the Department needs to tell us all prontissimo what the transitional provisions will be under LURB for existing plan-making exercises. Or else we’re headed for even more delay and inaction. Which would be disastrous.
Anyway. LURB. And a new NPPF to go with it. You’ve already seen the basics by now. So shall we get into some of the nitty gritty?
One of the headline-grabbing ideas from the policy paper which accompanied LURB is to amend the NPPF’s requirement to demonstrate “a supply of specific deliverable sites sufficient to provide a minimum of 5 years’ worth of housing”. Here it is:
“To incentivise plan production further and ensure that newly produced plans are not undermined, our intention is to remove the requirement for authorities to maintain a rolling five-year supply of deliverable land for housing, where their plan is up to date, i.e., adopted within the past five years. This will curb perceived ‘speculative development’ and ‘planning by appeal’, so long as plans are kept up to date.”
So what should we make of this? Will it do the job, i.e. will it “incentivise plan production”? Because that certainly sounds like something worth incentivising, wouldn’t you say? When over 60% of authorities either don’t have an NPPF-compliant plan at all, or have one which is over 5 years old: see the numbers here from Savills.
Well. Let’s take it in stages:
Why do we even have a “5 year housing land supply” requirement?
In 2004, economist Kate Barker (nowadays Dame Katharine Barker DBE), delivered the final report in her Review of Housing Land Supply to Tony Blair’s government. Anyone who wants to feel sad and frustrated - and why else would you be reading a planning law and policy blog? - can just leaf through the Barker report and ask themselves how much of what KB said still applies today, almost 2 decades on (spoiler alert - almost all of it). It’s painful. So little of the debate on planning for housing has evolved since then. On the contrary: we’re moving backwards.
Annnnyyyyyway, KB gave us chapter and verse on the socio-economic perils of an unresponsive, unaffordable housing market constrained by inadequate supply of housing land. She recommended allocating more land for development and strenghtening the role of regional planning bodies to lead the way with objective market-led data on housing numbers (sigh). One of her suggestions was for indicative net housing targets to be set for each region, and each local authority, over a 5-10 year period.
Scroll forward to 2006, and the Government responded to the Barker review with PPS3 which told us that:
“Where Local Planning Authorities cannot demonstrate an up-to-date five year supply of deliverable sites, for example, where Local Development Documents have not been reviewed to take into account policies in this PPS or there is less than five years supply of deliverable sites, they should consider favourably planning applications for housing…”
Why? To help deliver a “step change in housing delivery”. That was the idea.
In 2012, that requirement was woven into the heart of the brand new NPPF. Again, the idea was (and - at least in theory - the idea still is) to significantly boost housing land supply. Albeit you wouldn’t know it from some of the recent Gove-ian soundbites.
Under the “presumption in favour of sustainable development”, not having a 5 year supply of housing was supposed to be a big thing. It rendered some of the policies in the your development plan “out of date” (on which, see here). That could mean that you trigger what #planoraks have taken to calling the “tilted balance”: more on that here. It’s now to be found at §11(d)(ii) of the 2021 NPPF. Under that balance, permission should be granted unless (can you recite it along with me?):
“any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”
Does the 5 year housing land supply requirement actually work?
Depends who you ask!
It’s a policy which gets people talking. The most popular critique of the 5 year housing land supply policy seems to be that it’s working too effectively. That it’s opening the floodgates to unplanned housing. It’s a punching bag of a policy for those who like to declaim the evils of speculative schemes promoted by caricatures of greedy, unscrupulous developers. Have a look at this screed from CPRE for an example.
But - with the greatest respect and love to the declaimers - the real problem with this policy isn’t that it works too well. It’s that - in large parts of England - it doesn’t work at all.
Around 1/3 (see e.g. here and here) of local planning authorities do not have a 5 year housing land supply. Ah - you might think. Doesn’t that mean a free-for-all for housing developers looking for easy wins? Well no. It does not. Not by a long shot. Why not?
It’s all in the footnotes.
Here’s an example: take this map from Planning Magazine which focuses in around London. The darker blue and purple blobs shows areas where there are 5 year housing land supply shortages (i.e. in large swathes of the home counties):
NB the white blob in the top-left of the map is Buckinghamshire - where in at least one of the areas (Chilterns and South Bucks) the Council accepts there is a significant housing land supply shortfall. So add some more purple there too in your mind’s eye.
Now compare that to this map from Urbanist Architecture of the Metropolitan Green Belt:
Do you see the problem?
In areas covered by footnote of the 7 NPPF - so that includes the Green Belt in the 2nd map, but also covers other things like National Parks, Sites of Special Scientific Interest, Local Green Space, Areas of Outstanding Natural Beauty etc… in these areas, §11(d)(i) of the NPPF means that we never get to any “tilted balance” if the application of policies in the NPPF on these environmental designations “provides a clear reason for refusing the development proposed”, then permission is refused. No tilt. No presumption.
So for instance, in the areas washed green in the 2nd map, if there are no “very special circumstances” to support new housing (more on that here), the Green Belt chapter of the NPPF will provide a “clear reason for refusing” the scheme under §11(d)(i). Which means in many cases, you will never get anywhere remotely close to a “tilted balance” in Green Belt authorities as a consequence of their failing to demonstrate 5 years supply of housing.
What does all that mean?
It means that the authority areas washed over in green in the 2nd map are, more or less, immune from the consequences of their housing land supply failures shown in the 1st map.
As I said last year, the same point applies to the Government’s housing delivery test: here. Another broken policy mechanism.
So will the change now proposed incentivise plan-making?
The deal on offer to authorities - as Simon Gallagher explained to me recently here - is simple: “get a plan in place and there will be less scope for appeal”.
Sounds good? Maybe. But plans are expensive, resource intensive and (often) enormously politically challenging exercises. To make plan-making worthwhile, this deal only makes sense in places where you have significant risk of speculative planning appeals in the first place.
But as regular readers will remember - yes both of you - it’s particularly in Green Belt authorities where the high-profile disasters of recent plan-making have happened (see here and here).
But hang about: because of footnote 7 NPPF - it’s those same authorities (along with those outside the Green Belt but covered by large swathes of AONB or National Parks) which are effectively immune from the consequences of losing their 5 year supply of housing.
So where’s the incentive to plan? I don’t see that there is one. No carrot. No stick. Nothing. Letting authorities off a requirement to demonstrate a 5 year supply of housing will not incentivise plan-making in these mission-critical areas because they’re already effectively immunised from the consequences of not having enough land for houses.
Which is why - for my money - the real problem with the 5 year housing land supply policy isn’t that it provides a developer-led free-for-all. The policy is a long-standing and sensible tool to try to boost housing land supply, which is something governments of every colour have been trying to do for decades. The policy is a useful corrective for when the plan-led system doesn’t deliver the growth it should. But the real problem is not that it’s too effective. It’s that in large and important swathes of England it’s broken. It doesn’t work.
So in the end: taking a broken policy and relaxing it even more won’t make any difference in those areas where plan-making is extra difficult in the first place (e.g. in the Green Belt, or in AONBs). That’s my answer. The proposed change won’t work because it won’t incentivise the delivery of the local plans in those critical areas where the incentives are really needed.
Footnote 7, folks. One of the most powerful policies in the NPPF. It’s every planning lawyer’s credo: don’t miss the small-print.
Right. Back to your Pimm’s and strawberries. Let’s hope this ridiculous heatwave holds long enough for us to enjoy the weekend. Stay safe and well. Brace yourself for the train strike. And, regardless of what LURB says, most of all, friends: #keeponplanning.
