Further to Part 1 published in December, Part 2 continues with a review of the current shape of the NPPF’s housing supply paragraphs. As stated in Part 1, it is paragraphs 47 and 49 [together with paragraph 14] that carry fundamental weight in the deliberation of applications when assessed in conjunction with Local Plan Policy.

Again, fuller analysis of the implications are encapsulated within my seminars for the professional industry across the 2015/16 period, details of which can be found elsewhere on the website.

Housing Supply – Calculations & the NPPF

Housing supply, and the strategy for delivery (or lack of) continues to remain the hot topic in planning for obvious reasons. Housing delivery is not carrying through in the volumes required, and this is partly down to a lack of delivery of reliable FOAN (Full and objectively assessed needs) targets produced by Local Authorities. LPAs are now under severe pressure to get their positions in order in advance of 2017; but as those who have already produced some figures have found out, if you do not carry out the FOAN analysis in line with the NPPF, it is there to be attacked.

Paras 47 and 49 carry the NPPF weight simply because they provide instruction on the approach to FOAN. The most important requirement of Paragraph 47 is to ensure that Local Plans “meet the full, objectively assessed needs for market and affordable housing”. Paragraph 159 of the NPPF provides the prescriptive instruction on how to undertake the two stage FOAN process to underpin the requirements of Paras 47 and 49.

Further to this, footnotes 11 and 12 have proven useful hunting ground for developers looking to disprove the robustness of a LPAs FOAN. The footnotes tell us the difference between a “deliverable” and “developable” site; whereby a deliverable site is ready to be available now but a developable site should have a reasonable prospect of being available in the future. It has been seen that LPAs have identified too many sites as deliverable whereas in fact would more likely qualify for the developable definition, making the robustness of their 5 year housing supply targets questionable.

Key decisions since the implementation of the NPPF have shaped or in some cases reconfirmed that LPAs have to have clear conviction in a deliverable 5 year housing supply as a minimum; this requirement is only going to become more imperative as housing targets continue to be missed. To understand the nature of those decisions it is important to understand what is required of an LPA under Para 159. They are required to undertake a clear two stage FOAN. The first stage assesses the market requirement, in the form of a Strategic Housing Market Assessment (SHMA), whilst the second stage is to assess the restrictions that could impact on that requirement (i.e. a Green Belt Heavy Authority, a lack of solid infrastructure etc.). If the first stage requirement cannot be delivered there needs to be very robust reasons why not, as of course Green Belt land can be unlocked in strategic planning, and the shortfall is expected to be taken by non-affected neighbouring LPA’s as a result (a “duty to co-operate”). Unsurprisingly, if the two stage process is slow in coming forward, in most cases the duty to co-operate is non-existent.

Hunston [2013] found that the two stages cannot be combined. If the two stage process has not been followed to meet Para 47, then as per Para 14, you have a silent plan and the LPA has to suffer the consequences (usually significant housing development that would have been considered to be premature in its delivery had the stages been robust). Further to this Gallagher Estates [2014] won a decision based on the fact that Solihull Council could identify the constraints (Part 2 – Green Belt) but hadn’t identified their needs.

Exeter City Council [2015] lost a decision whereby they considered the SHMA requirements were too high, but did not have a robust stage 2 to hand. As such, housing supply was judged against a need that had not been through the stage 2 filter, and as such is higher than would be expected. It is up to the council to get their stage 2 in order to re-assert control.

Kings Lynn and West Norfolk [2015] identified what can be used in Part 2 to restrict housing supply and what can’t. Green Belt land can be used as a restriction, but only where it can be proven to meet the 5 NPPF objectives of the Green Belt. Given the amount of historic Green Belt land that does not contribute to the 5 objectives in any fashion, this is an important decision in unlocking unnecessarily restricted land.

The decisions above, together with the assessment of deliverable v developable, all provide incentives for developers to study the robustness of a LPAs housing supply position, and challenge any weaknesses. This is important in an environment where clarity on strategic delivery of housing is still lacking due to the lack of strategic local plans. Phides Estates (Overseas) Ltd [2015] – whereby other restrictive none housing supply policies, such as settlement boundaries, can also be used for part 2 of the FOAN; and Crane [2015] – whereby if a LPA is close to but not at a 5 year delivery the weakness of the plan is proportionate to the distance they are away instead of definitively silent, respectively provide recent comfort to LPAs but it is not enough to stop developers chipping away at housing supply positions.

Such private sector scrutiny of public sector documents can provide some discomfort and short term disorder to the plan process, however this essentially is a result of local authority denial as to the extent of the housing requirement since the NPPF was adopted and a dismissive nature towards housing applications bought forward in light of a lack of solid plan process. The market has and will continue to need housing supply in larger and larger numbers, and it is up to the Local Authorities to play a proactive part in delivery or have decisions continued to be taken out of their control. Time will tell if the clear requirements of Paras 47 and 49 are met on a national level.