Some answers are needed on the local plan

The truth is out there . . . but quite where, no-one really knows.

We refer, of course, to the latest debacle in the Twilight Zone that is Cheshire East Council’s local plan.
After the council proudly proclaimed that it had sorted out its five-year supply of housing — although at the second time of asking — a Government inspector has now allowed 90-plus houses to be built at Elworth Hall Farm, Sandbach, and told the council that it misled itself. It has no five year plan.

This means we are again at the mercy of developers, and back to square one.

As far as we can tell from the inspector’s report, he dismissed Cheshire East’s five year plan on three grounds: the council’s lead-in times for houses to be built was over-ambitious; 40% of the projected houses did not have planning permission and might never be built; and the fact that the council had included retirement homes, which it says will house 360 people. He also pointed out that the council had not consulted builders, as was the norm, and that it had changed its assumptions from its 2012 assessment.

The first question must be over the help Cheshire East was given by Government minister Eric Pickles, who sent in experts to advise the council on its plan. If the council followed the experts’ advice, it should have legal recourse against the Government and it will be the Government that is to blame.

If the council did not follow the experts’ advice, heads should roll. Council leader Michael Jones has pretty well staked his reputation on the plan being complete, and Congleton’s Dave Brown is in charge of it.
But whoever is to blame, we have now got to suffer at the hands of developers well into next year — and the free-for-all will continue.
Working out where it all went wrong is hard, however.

***

Collectively, we all may be partially to blame. Both Congleton Borough Council and Cheshire East Council failed to deliver their targets for housing: Congleton borough in 2006-07 and 2007-08 and Cheshire East since 2008-09, the planning inspector said.

It seems logical to assume that, in part, this was because people objected to houses being built over the years. The rejection of each small plan added up to the dire situation today. True, there was also a Government-imposed moratorium on building.

But part of the problem must also be inept decisions by councillors — and possibly others.

***

We say that because Congleton borough’s local plan was in disarray — and, as far as we can ascertain, that was because plans for an industrial estate in Congleton were shoe-horned in at the last minute. But it is possible the problems began before then.

In 2001, following the Liberal Democrats’ well-publicised departure from power, the Congleton Conservatives threw out large chunks of the local plan.

“Planning officers could only sit and watch as many sites they had recommended were scrapped,” we reported at the time.

A housing allocation at Rookery Bridge, Sandbach, was deleted after comments from Coun Neville Price. Housing allocations next to Congleton and Sandbach railway stations were also deleted.

Some could see problems. Coun Bill Owen warned his colleagues about departing from the county plan.

Was this savaging of the local plan all those years ago the start of the problems, as Tories sought to establish control over the Lib Dems?
In 2007, the Sandy Lane business park in Congleton was backed by CBC, despite parish councillors accusing the borough of using “underhand tactics” to get the proposal pushed through. Coun John Wray described the plan as a blot on the landscape — but the 90-acre Sandy Lane site was added to the updated local plan after a Holmes Chapel site was rejected following local opposition there.

Sandbach’s Coun Barry Moran backed the Sandy Lane scheme, saying its inclusion had followed “the due process”.
But in 2008, the same council then threw out Sandy Lane, leaving Congleton borough without an enforceable local plan. The plan had been due to go to the Government for approval in 2008.

The-then leader of CBC, Roland Domleo, warned: “We have responsibilities and all of these projects come at a cost.” How right he was — but possibly not in the way he intended.

At the time, we were told by a leading councillor that the lack of a local plan meant a potential free-for-all for developers, a fact which must have been known by senior Tories at Congleton, a number of whom – Couns Domleo, Brown, Gordon Baxendale and Peter Mason — were on the shadow Cheshire East authority in 2008.

They must have known that Congleton Borough had no enforceable local plan, and the dangers that this brought. The developers’ free-for-all had been predicted to us, though it is doubtful anyone could have foreseen how bad it was going to be.

As far as we aware, local plans take around four years to prepare. In theory they are rolling plans and one should always be in force. But nobody has explained to us how Cheshire East and Coun Brown have taken since 2008 on the local plan and still not completed it — if it goes for approval in 2015, that will mean it has been seven years in the making. It should, at the latest, have been finished more than a year ago.

***

We are not original in making these criticisms.

Last year, we reported how Coun David Brickhill had attacked the council, quoting the shortfall in new houses. He said the total number of developments for Congleton was only 30% of its total, in Alsager 50%, but in Shavington 160%.
He pointed out that Coun Brown had been in charge of the local plan since 2008.

Coun Brickhill said: “I think this whole local-plan business is being run extremely badly, and that is why we are in this position today.” We had no letters contradicting his comments, and no complaints. Some blame must also rest with Wesley Fitzgerald, who was the leader of the council: the buck stops at the top. He, of course, is the 2014-15 Mayor of Cheshire East.

***

It is possible councillors will be spluttering at all this — but the fact is we just don’t know why we are in this mess because nobody ever admits to mistakes.

And if we don’t know, we can only speculate — though we are speculating via our news stories at the time.

So we would like to pose some questions we — and probably many readers — would like answering.

We would like to hear from those involved; we do not have to print your names.

Please note we do not want letters from councillors and former councillors just exonerating themselves or their party.
Mistakes and errors of judgement have been made — even with the best of intentions — and someone must have made them.

These questions might help explain how we got to where we are:

• Why were schemes dumped wholesale from the local plan once the Lib Dems lost power?

• Where did the Sandy Lane business park idea come from?

• Who put it in the local plan at the last minute?

• If it was so crucial, why was it pulled?

• Did this cause the Congleton borough local plan to lapse? If not, what did?

• Why will it take Cheshire East Council seven years to develop a local plan, a process that normally should take only four?

• What actions were taken when Cheshire East Council was formed, in the knowledge that CBC had no local plan and that this area was, at the least, open to developers?

• Did Cheshire East Council follow the experts’ advice over the five-year plan? If so, is legal action being taken?

8 thoughts on “Some answers are needed on the local plan”

  1. You make some good points. As a Greedy Developer I have a few points to make:

    1. Assuming you live in a house, do you like it ? A developer probably built it and there was quite possibly an outcry at the time. Greedy developers build houses for families to live in. Knowing Cheshire well I am often stunned when the public send objection letters against planning applications from addresses that were themselves green & pleasant fields 10, 20 or 30 years before.

    2. If Greedy Developers do not build houses, where will your children and grandchildren live ?

    3. Greedy developers employ local workers and contribute through taxation to the country.

    4. Greedy developers contribute significantly to local amenities for each build via Section 106 agreements. Incidentally, one of the causes of delays in building is the difficulty on reaching agreement with the planning authority over S106 agreements – something the inspector in the recent appeal mentioned.

    5. Central government sets the number of housing units requirement. The Local Plan is intended to guide and control development to achieve that ambition in a manner acceptable to the people. Lack of this and a 5 year supply technically indicates that the planning authority is not going to hit the target and in that case there has to be a way to catch up the numbers. The release valve is the reduction of decision making powers given to the planning committees when deciding applications and it results in construction in sites that a Local Plan would have defended. However, the overall amount of units is the same in either case – the difference is simply the location. We Greedy Developers would prefer there to be an active local plan that we could work within simply because fighting appeals costs so much in terms of costs and delays.

    I end with an appeal for you to drop the ‘at the mercy of Greedy Developers’ jibe. It reduces your authority.

    An anonymous Greedy Developer

  2. Greedy Developer makes some fair points. In previous editorials I’ve defended developers – they’re not greedy, just doing their jobs and providing employment. I live in a house on a site that I remember as fields.

    However: I would counter that in this case, developers are building on sites where they would not normally get planning permission, because they know they can.

    But (to my relief) I do not actually use the phrase “at the mercy of Greedy Developers”. GD has added that him/herself. Dr Freud, you are needed! Ho ho, and ho again.

    I actually wrote “This means we are again at the mercy of developers, and back to square one.”

    I can see why GD inserted the word “greedy” but would counter that the statement is true: we are at the mercy of developers because we are in a situation where building is developer-led. Builders do not have to take account of infrastructure (schools, roads) and can just build where they think suitable or where they can. If the council had a valid plan, it could control development. To that extent, we ARE at the mercy of developers.

    But GD – you still make some good points. Could you expand the angle about “We Greedy Developers would prefer there to be an active local plan that we could work within simply because fighting appeals costs so much in terms of costs and delays”? It would make an interesting opinion piece in the Chron. It can be anonymous.

    1. Indeed I inserted Greedy – the usual prefix for developer is ‘unscrupulous’.

      You are wrong in your assertion that developers do not have to take account of infrastructure. Since you have invited me to expand, I will take up your offer.

      It works like this: while the planning authority has a valid Local Plan and 5 year supply they take planning decisions on our unscrupulous development applications based on the input from their planning officers and using the guidelines contained in the National Planning Policy Framework (NPPF – link at foot). This allows them latitude to reject applications on various grounds.

      But, while the local plan or 5 year supply are broken, the guidelines in the NPPF are much reduced and the planning committee members are compelled to approve an application if it is ‘sustainable’ and where, on balance of a number of subjective factors, it is better to build than not to do so.

      Para 14 is as follows – The kicker is the last bullet point :
      ———–
      At the heart of the National Planning Policy Framework is a presumption in
      favour of sustainable development, which should be seen as a golden
      thread running through both plan-making and decision-taking.
      For plan-making this means that:
      ● local planning authorities should positively seek opportunities to meet the
      development needs of their area;
      ● Local Plans should meet objectively assessed needs, with sufficient
      flexibility to adapt to rapid change, unless:
      – 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; or
      – specific policies in this Framework indicate development should be
      restricted.9
      For decision-taking this means:
      ● approving development proposals that accord with the development plan
      without delay; and
      ● where the development plan is absent, silent or relevant policies are
      out-of-date, granting permission unless:
      – 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; or
      – specific policies in this Framework indicate development should be
      restricted.

      [There are some footnotes for this para in the actual doc]
      —————-

      Therefore this means that developers have to show that their application is for ‘sustainable development’. There are detailed technical descriptions of what that means, though you were not far off with your list – schools, doctors, shops, roads, buses, etc.

      We are still required to produce lengthy plans covering the full technical, ecological, geological, landscape and other usual considerations.

      And we are then also required to agree Section 106 arrangements with the council before final permission is given. This is usually a contribution (money) toward highways, green space, schools, and many other potential causes. This is a valuable contribution to council funds, plus they receive a council tax grant increase from central government per extra household, so it is not all without an upside for the public.

      In summary, the difference when the local plan and 5 year supply are broken is that we can make applications to develop sites that would not normally be acceptable. We still have to do at least the same amount of work and have the same or higher costs (read on).

      Importantly, the requirement to be ‘sustainable’ means that these are reasonable places to build – even if the public might not appreciate the locations.

      But the nub is that the same amount of properties get built in either case. And yes we make money, but costs are higher if we get into appeals and very high when barristers are involved. CEC has opted to reject all applications outside brown field or previously accepted sites and will continue to do so according to recent statements. This means more appeals.

      You may not know that there are 3 appeal processes, a written-representation appeal, an informal appeal, and a formal hearing. The first is most straightforward and lowest cost, and the last is an expensive barrister-based process. Appeals are decided by an inspector from the Planning Inspectorate, who can defer to the Secretary of State. Decisions can only be challenged in the High Court. You can see that it is a costly and high-stakes activity involving many parties. The decision to go to expensive barrister-based appeals is triggered for various reasons, but is almost automatic when the 5 year supply is challenged.

      In this mode, both the developer (the appellant) and the council (CEC) wheel in legal teams, do extensive research, and hire expert witnesses. Costs are driven by person-hours spent on the task and can rapidly add up. It might be interesting to make a FoI request to CEC about costs of appeals.I believe they have lost every significant appeal except one, so the sums should be impressive. There are 38 appeals in progress (not all major) related to CEC – search at http://www.pcs.planningportal.gov.uk/pcsportal/CaseSearch.asp

      There is also a timing effect for major appeals. You might assume that this is because all of the information takes time to assemble, but you would be wrong. You see the appeal process runs to very clear and tight timescales. However, the Inspectors can take many months to make their decision.

      Two points on appeals process:
      1. each case is reviewed in isolation – there is no assumption of ‘precedent’
      2. inspectors will review the appeal on the basis of information available ‘at the time of the appeal’,
      3. costs are usually not recoverable

      Critically this means that, where a 5 year supply is broken when an application is made and rejected by the council planning committee, by the time the appeal is heard some months later, the council may have approved enough other (newer) applications to reach the 5 year supply target, resulting in the appeal failing when logically it should have been approved at the committee stage and never entered into the appeal process.

      Put another way, it is in the favour of the council to consistently state they have a 5 year supply, even when they clearly do not, because there is no down side for them, ‘except’ if the costs of running major appeals become visible. They can effectively ‘park’ otherwise valid applications in the appeal process whilst they backfill the approved permissions as was the case in Jan 2014. It is likely that we will see the same in the following months.

      And on the subject of point 3 above concerning costs, there is little liability for the council since costs are seldom awarded under PINS appeals.

      The only fallout for the council in this is the bad press and political ammunition afforded to the opposition. Meanwhile significant sums possibly in excess of those for the Lyme Green case are stacking up conveniently out of sight against legal and planning budgets.

      It should be fairly clear that there is a net loss for developers when there is no local plan or 5 year supply. We are simply the easy whipping boy for those who would deflect scrutiny from their own responsibilities and performance. And the public, uninformed about the way planning works, just follow the cry of ‘Greedy Developers’.

      NPPF at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/6077/2116950.pdf

  3. In response to Greedy Developer, I would correct 3 points
    1) in the absence of a Local Plan and 5 year housing land supply it is not “on balance” of whetehr the application for housing is good or not, but the scales are weighted very heavily in favour of approval, because the council has to demonstrate that any adverse impacts of doing so would significantly and demonstrably outweigh the benefits
    2) sustainable is NOT clearly defined in a practical way. At present it is a ‘humpty-dumpty’ word. (Humpty Dumpty said “When I use a word it means just what I choose it to mean”.) It sounds good for teh government to be able to say “We only allow SUSTAINABLE development”, but it seems that the developers will claim that almost any site in Cheshire East is sustainable. I do wonder whether this is deliberate and the government wants councils to define sustainable for themselves. Cheshire East Council has failed to coem up with a practical definition of sustainable that could be used to assess applications.
    3) Whilst developers whose sites are in the Local Plan might welcome a Local Plan as it would give certainty and so save on legal costs, those develepors whose sites are not in the Local Plan will look to destroy the Local Plan. At present, all developers win – those with sites in the Local Plan are almost certainly going to get approval for their sites, while those with sites not in the Local Plan have a fair chance of getting approval for their sites if they are willing to spend enough on legal fees. The big losers are Cheshire East residents who have to pay the Council’s legal fees and get inappropriate housing developments.
    Finally, the Corporate Scrutiny Committee has asked for details of how much has been spent on appeals. At present the costs are netted off in the accounts against the extra income being generated by all the planning application fees.

  4. Hello Sam Corcoran from GreedyDeveloper.

    Regarding your points,I would like to respond to your points to clarify for others:

    1. When I said ‘on-balance’ I was simplifying to make the point. Your counter is that the council must show for a refusal that the down side of the application would ‘significantly and demonstrably outweigh’ the benefits [Quote from NPPF para 14].

    I can assure you that the strategic planning board can, and do, use that clause for refusal without providing any evidence or demonstration. Therefore, they must be making some balanced (meaning subjective) judgement which they are not compelled to share, and as they also do not publish detailed minutes of their deliberations, the only means to understand their thoughts is via costly appeal.

    2. Again, when talking about sustainability, I simplified the point. There are guidelines defining aspects of sustainability but they do allow much leeway.

    3. Regarding your third point, you are right in your inference that developers take a calculated risk when putting in applications and appeals. However, I stand by my point that the process is far more costly than would be the case were there a plan with allocated sites which the owners could bring to developers and the council for the development of well planned housing that is truly sustainable and completely acceptable to the public. Might I suggest that your anger is currently misdirected at developers when we are really a symptom of the true cause of the pain – the lack of a Local Plan. From a business perspective, I would rather run a business that does not involve such risk, particularly when I cannot predict the odds of the gamble.

    4. Finally on costs, it is extremely unlikely that the income from planning applications alone offsets the costs for CEC running appeals. For anyone interested, the current CEC price list is here http://www.planningportal.gov.uk/uploads/english_application_fees.pdf.

    Just regarding that point about the income from planning applications – is that an official position ? The implication that the failure to provide a Local Plan is a money making scheme is something I admit that I had not considered. I ‘can’ accept that the S106 agreements generate significant income, though these would happen anyway even without an appeal,. They can also be very difficult to agree which causes a lag in delivery of housing once permission is given in principle. This is one of the points that CEC under-accounts for in its discredited 5 year supply calculation.

    Thats all, am off to polish the new Bently now.

    PS. Sam, ref your website mentioning your objection on White Moss being inside the blast zone of Radway Green. This argument is possibly not going to have teeth for a couple of reasons:

    1. It was outside the settlement boundary or the old Congleton Local Plan (now out of date fore-runner of new CEC Local Plan) but inside the new zone for the CEC Local Plan. Again – blast zone ?

    2. Because CEC already gave permission for a development at Rhodes Field on the corner of Crewe Rd and Close Lane which must also be inside that blast zone. If the latter ‘IS’ inside the blast zone then someone might want to check if that was noted when the Strategic Planning board took their decision. The application ref was 13/3032C, considered & decided at committee on 23rd Jan 2014 but for some inexplicable reason the case on the CEC planning website is not updated. The committee minutes are here, see item 151,

    http://moderngov.cheshireeast.gov.uk/ecminutes/documents/g5170/Printed%20minutes%2023rd-Jan-2014%2010.30%20Strategic%20Planning%20Board.pdf?T=1

    Background info: CEC will have the blast zone details – a note from fire service ref RG blast zone: http://www.cheshirefire.gov.uk/about-us/key-documents/freedom-of-information/disclosure-log/risk-assessment-information#.U1Yt_vldUsY

    And you might find that the trump card for White Moss is wildlife. Adders, toads and newts. Maybe English Nature could be encouraged to get involved.

  5. Local Plan furore to eclipse 5 year supply skirmishes ?

    The arguments between developers and CEC over the 5 year housing supply has been a storm in a tea cup compared to the potential combat that we will see over the detail in the new CEC Local Plan.

    As background: CEC is due this week to post its new position on the 5 year housing land supply figures, updated to combat the rulings from the Planning Inspectorate’s inspectors in recent planning permission appeals that CEC has lost.

    The 5 year housing land supply is important because when it is not demonstrably viable then unsuitable planning applications have a good chance of being successful.

    However, the 5 year supply has a sister document – the Local Plan, which is also of great relevance on this point. Critical to the decision making process is NPPF para 14 which says that permission should be granted ‘where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless…’.

    The Local Plan and 5 year supply form much of the material that is the subject of this para 14 clause. The hope for CEC has been that the Local Plan, although a long way off acceptance, would add weight to their stance and allow more robust defence against greedy developers.

    That was, of course, until the objections to the recently presented CEC Local Plan started to arrive. Of particular note is Stockport’s legal challenge on the validity of the consultation process around the Handforth new town that CEC proposes.

    This could easily result in a judicial review which is a process that can take a very long time, and would effectively stall the adoption of the CEC Local Plan, allowing developers more latitude with site selection in the mean time.

    And the Local Plan and the SHLAA (the document that is distilled into the 5 year supply) are tightly related. Whilst the plan defines ‘what’ will be developed, the SHLAA says ‘where’ it is built. The Local Plan is a long-range document, covering 20 or so years (for sake of discussion) and the SHLAA identifies sites for this development in 0 – 5 years, 6 – 10 years, etc. The 5 year supply statement relies on the sites listed in the SHLAA.

    Should any of the legal objections to the Local Plan cause a site listed in the SHLAA to fall away then the ‘rolling’ 5 year supply is potentially impacted, if not now then maybe next month or next year.

    GD

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