Unfortunately, due to the judgement made at the High Court, in favour of Gallagher’s and Lioncourt Homes, who sought a judicial review into Solihull’s local development plan, the position of developments within Blythe ward are at risk. As readers will know, the sites identified for development within the ward were subject of phasing; allowing development between now and 2023. By and large (subject to flood risk issues) this was acceptable to the majority residents within the ward. However, the judgement effectively rules the borough council needed an extra 3000 homes within its local development plan and criticised two sites in Tidbury Green being placed into the green belt (Tidbury Green Farm and Lowbrook Farm). The full text of the judgement can be read here: http://www.landmarkchambers.co.uk/userfiles/Gallagher%20v%20Solihull%20MBC.pdf
There have been many comments made by some elected councillors, and in letters to local newspapers, to the effect Solihull Council were at fault over the local development plan (LDP). One comment claimed the council was going to get a lot of extra money from council tax, suggesting the council was complicit in wanting these extra houses. However, it must be borne in mind the plan was signed off as a soundly based plan by the national planning inspectorate – as required by law. The judgement is critical of the inspector, not SMBC. It is not SMBC that has fouled up, as some claim. One of the top planning inspectors in the country oversaw the development of Solihull’s local plan. The inspector agreed with the numbers within the plan, the phasing of development and the removal of certain sites into the green belt. The judicial review was, in effect, a review of the inspectors decisions, as indicated in paragraph four of the judgement:
‘The Council duly adopted the SLP with those modifications. It is the SLP thus adopted which is the subject of challenge in these proceedings; but, as the Council can only adopt a development plan document which has been approved after an examination in public in accordance with the statutory scheme, the focus of this application is on the Inspector’s Examination and Report’.
The judgment was naturally a blow to the borough council especially because of the difference in numbers of houses required in the LDP. This meant, at a stroke, the number of houses to evidence the council has a five year supply of housing for development needed to be increased immediately by about 500 houses. This is an important issue and affects planning applications and outstanding planning appeals – the major ones wholly being within Blythe ward.
At the Solihull planning committee meeting of 29 January 2014 all planning applications within the ward, and subject to phasing, were refused on phasing grounds – because the council could identify a five year housing supply, as identified by housing numbers shown in the LDP. There was a separate issue regarding flood risks with the application for Mount Dairy Farm, Cheswick Green. The judgment means the borough council can not now legally use the same reason for refusing the applications without identifying new land for development. This was the reason for the position statement made by the council (see link: http://eservices.solihull.gov.uk/mgInternet/documents/s8197/Cabinet%20Report%2019%20June%20Policy%20Position%20Statement%2019_06_14%20Final.pdf ) . Here, in paragraph 4.9 the council states that phase two and three sites within the LDP and subject to current planning applications and appeals:
Unless and until the objectively assessed housing needs of the Borough are determined or the appeal against the High Court Judgment is successful; the release of Phase Two and Three housing sites will be considered for early release in line with Local Plan Policy P5. This will be recommended to the Cabinet Member for Economic Development and Land to ensure that a five year supply of deliverable housing sites is maintained and Local Plan policies for the supply of housing land can continue to be considered up-to-date at this time. This Policy Position Statement will have implications for those planning applications relating to allocated sites (phases two and three) and to undetermined appeals against the decision of the Council to refuse planning permission for residential development.
In effect all phase two and three sites within the borough come under this position statement; the realism is there are only major planning applications and ongoing appeals for development within Blythe ward.
In short; the developers know this and know the applications will not be able to be lawfully resisted by the borough council purely on the basis they were identified for release in either 2018 or 2023 in the LDP. This means the two sites in Dickens Heath (Braggs Farm and Cleobury Lane), where there were appeals and new applications, will not be refused on phasing grounds. Neither will Mount Dairy Farm, Cheswick Green. However, flood risks do need to be attenuated.
In relation to this latter site, there has been a comment made on Facebook by a Shirley councillor, stating this site had been designated as green belt when he was deputy leader of Solihull Council (between 2010 and 2011). This is not true; Mount Dairy Farm has not been in green belt since 1992 and subsequent decisions made by planning inspectors always reinforced this site was safeguarded for development. See history of site, with statement made by planning inspectors via this link: https://cllrkenhawkins.co.uk/2013/09/18/mount-dairy-farm-tanworth-lane/ (posted on my website 18 September 2013).
What can SMBC do?
Well, unless the council rolls over and accepts the judgment it will have to identify another 3000 houses for development within the borough over the next 10 years. This is not what the council wants however, and sought ‘leave to appeal’ against the judgement at the Court of Appeal. This took several weeks to undertake but the council was given leave to appeal with an order made by Rt. Hon. Lord Justice Sullivan granting permission to appeal in the Court of Appeal and giving his reasons as:
“The grounds of appeal have a real prospect of success and there is a compelling reason for this appeal to be heard. both grounds raise questions as to the proper interpretation of the NPPF which are wider significance.
(i) Whether the NPPF, and in particular paragraph 47 thereof, did effect “a radical policy change in respect of housing provision” (paragraph 98 judgment) so as to render the inspector’s approach to the housing provision in the SLP unlawful.
(ii) Whether the factors identified by the inspector in paragraph 137 of his Report (paragraph 121 judgement) were not, as a matter of law, capable of constituting 2exceptional circumstances” for the purpose of paragraph 83 of the NPPF.
He finishes by stating ‘The Order grants permission for an expedited appeal to be heard in the first term after the summer break.
What does this mean?
What it does mean is that the council has been given leave to appeal against the judgment made at the judicial review and claim the original LDP was soundly based and that the inspectors judgements and comments should take precedence. Therefore, the housing numbers should be as identified in the plan, 11,000 homes instead of the 14,000 claimed by Gallagher’s and Lioncourt Homes. If successful the appeal would also mean the council would be able to identify a five year housing supply, by way of phasing, throughout the life time of the LDP.
The appeal to the Court of Appeal will not take place until Autumn 2014 at the very earliest and we have planning applications and appeals in the system. I have to state that any application and appeal that is heard before the appeal will have to adhere to the judgment made at the High Court in April. To repeat what I stated earlier; we can not cite we have a five year housing supply without allowing all phase two and phase three sites in the plan to be brought forward.
To me this is sickening and a blow that shows developers will always seek loopholes to ride roughshod over local planning wishes.