Out-Law Analysis | 02 Jun 2016 | 12:43 pm | 4 min. read
Embedding early review in local plan policies may seem like a draconian way of ensuring that their objectively assessed housing needs (OAHN) are adequately addressed, but cross-border cooperation on housing is essential, and experience has shown that LPAs will not often voluntarily cooperate to absorb overspill housing numbers from their neighbours. This makes early review the perfect opportunity to revisit any agreements and ensure that cooperation on numbers is given the best opportunity to happen.
A commitment to early review can give planning inspectors the confidence to declare a plan sound, in circumstances where weaknesses in the available evidence may otherwise have prevented them from doing so.
We are already beginning to see this happen in areas such as the West Midlands, where a planning inspector recently suggested a main modification to the Stratford upon Avon Local Plan that builds into policy an early review once the joint work is completed between LPAs to identify how the needs of the Coventry and Warwickshire Housing Market Area and the Greater Birmingham Housing Market Area will be met and if that review identifies that Stratford District is to accommodate some of the need which cannot be absorbed within existing reserve sites. The draft policy that has been consulted on, explicitly states the Local Plan will not be out of date if unmet need from outside the District exists.
But we would go further. A policy should be included requiring early review, with failure to undertake such a review following certain specific 'trigger events' automatically rendering the plan out of date. The existence of unmet need within a housing market area that a LPA sits within should be a sufficient trigger, regardless of whether LPAs have agreed who will actually accommodate the need.
If LPAs are given unlimited timethen decisions are put off or never made. LPAs within any given housing market area should all be under the spotlight when unmet housing need is exposed and be forced not just to cooperate but to agree a solution in a timely fashion. Having an out of date plan has a tendency to focus the mind and as all LPAs will be treated equally the risk of a lack of LPA commitment that could undermine the process is significantly reduced.
The conclusions of the Local Plan Expert Group, which presented it recommendations to the government in March, are hard to argue with. The process for producing and approving local plans should be as streamlined and efficient as possible - and, most importantly, robust. However, as the report itself identified, calculating and agreeing an OAHN figure is one of the biggest stumbling blocks for LPAs, and one of the issues most likely to be criticised by the Planning Inspectorate.
The report recommended a standardised procedure for these calculations, which may be useful for future plan-making. However, this will not assist with plans that are already in force, or that are currently going through examination.
The West Midlands provides a stark example of the challenges of ensuring that OAHN is fully met across a housing market area, as the LPAs that overlap that area progress their plans at different speeds. The Birmingham Development Plan was recently approved by the Planning Inspectorate despite a 38,000 home shortfall – one which will now have to be met by the authorities surrounding Birmingham. Meanwhile, embedding early review into the neighbouring LPAs' local plans, which have been adopted earlier, would have allowed the LPAs to revisit their plans once the Birmingham plan was finalised and to perhaps accommodate some of the Birmingham population overspill. It is a pity that the Inspectorate had not taken a more robust view as they appear to have started to at Stratford upon Avon.
As practitioners will be aware, getting LPAs to agree the sharing of OAHN across a housing market area is fraught with practical, legal and political challenges - despite the duty for LPAs to cooperate on cross-border planning matters. The Local Plan Expert Group suggested a number of steps that the government could take to incentivise cooperative working between authorities moving forward - however, once again, this does not address the frequency with which the issue arises in local plan examinations now.
Given the problems in the West Midlands, it was no surprise to see the inspector for the Birmingham Development Plan recommend a main modification committing Birmingham City Council to continue to work actively with neighbouring LPAs to ensure that the housing shortfall identified in the plan would be met within the Greater Birmingham Housing Market area. However, as the inspector recognised, this will require the neighbouring LPAs to themselves commit to reviewing their existing or emerging local plans to meet the needs of the market area as a whole. There is no actual requirement for them to do so, and the track record of LPAs across the country actually doing this in a way which delivers the OAHN is patchy at best.
It is now quite common for plans to be adopted without meeting an LPA's own OAHN, let alone accommodating the shortfall from neighbouring authorities, following the government's announcement of a 2017 deadline for the delivery of local plans in July 2015. In the absence of a legal requirement above and beyond the rather weak 'duty to cooperate', it is difficult to see how the government's target of 200,000 new homes a year will ever be reached.
Rebecca Warren and Matthew Fox are planning and housing experts at Pinsent Masons, the law firm behind Out-Law.com.