UK: Need For Up To Date Local Development Plans

Last Updated: 25 July 2018
Article by Winston Roberts

A recent appeal decision for 601 houses at Overtown confirms that unless Local Authorities keep local development plans up-to-date and demonstrate effective housing supply they will lose planning appeals, even on green belt land.

Background

A planning application for planning permission for a maximum of 601 homes, associated community uses and retail floorspace on green belt land at Overtown, North Lanarkshire was submitted in July 2015. The application was met with strong local opposition with over 100 objections including objections from two MSPs and one MP and no representations in support.

North Lanarkshire Council ("the Council") failed to determine the application and an appeal was lodged for non-determination. The Council stated it would have resolved to refuse the application due to, amongst other reasons, the location of the development on green belt land and the effect on the wider landscape.

Green belt vs. housing land supply

The appellant argued that the Council had failed to provide a 5-year housing land supply and therefore the North Lanarkshire Local Plan ("the LDP") must be regarded as out of date. According to the appellant, the 5-year shortfall in housing land supply was at least 2,188 units short of the total of 8,556 required across the Council district.

Paragraph 33 of Scottish Planning Policy ("SPP") states that where an LDP is out of date then the presumption in favour of development that contributes to sustainable development will be a significant material consideration. Approval of the appeal could only be withheld where there are adverse impacts which would significantly and demonstrably outweigh the benefits when assessed against the wider policies of SPP.

The Council disputed the appellant's district-wide approach for calculating housing land supply and contended that a housing market area approach for the Motherwell sub-market area was more appropriate. Adopting this approach, and taking into account sites identified in the Main Issues Report of the emerging LDP, the Council sought to demonstrate a significant supply surplus. Within the Motherwell sub-market area, the LDP placed considerable reliance on the deliverability of the South Wishaw Community Growth Area ("CGA"). The entire CGA site was located in an area with old mine workings and would need considerable remediation. As such, the emerging LDP had subsequently revised the CGA site's capacity from 900 to 75 units.

In addition, at the time of the appeal the emerging LDP was still at least 2 years away from adoption and when the Council undertook a further calculation based on updated figures from a 2015 Housing Demand and Needs Assessment and excluding the emerging LDP sites, there was still a shortfall of 682 units for the Motherwell sub-market area. While this was a smaller shortfall than the appellant's district-wide calculation, the Reporter considered that this "still confirms that there is a significant shortfall in the effective housing supply whether this is analysed on an authority-wide or a housing sub-market area basis".

Further to this, the Reporter considered that the amount of time remaining until adoption of the emerging LDP represented "a significant hiatus in the delivery of housing land, given the apparently ineffective status of sites allocated in the local plan..."

The Reporter concluded that the LDP was out of date, and that the SPP required that the determination of the appeal came down to whether the adverse consequences of the approval would outweigh the benefits of the development.

On recommending the appeal for approval, subject to a legal agreement related to education contributions mentioned below, the Reporter gave weight towards the contribution of the development towards the five-year housing land supply, despite the accepted impact on green belt. The Reporter noted that the development would conflict with green belt policy, would detract from the rural setting of the existing settlements and would cause harm to the landscape character and visual amenity. However, he did not believe this would significantly outweigh the benefits of the development and no matter what housing developments were delivered to meet the shortfall, "some adverse landscape and visual effects are very likely".

Planning Obligation

The parties disagreed about whether an education contribution would be necessary but ultimately it was agreed that there was no short-term education capacity constraint. The Reporter recommended approval of the development subject to a planning obligation requiring the education capacity to be reviewed prior to the completion of the 100th unit. The appellant would then pay a contribution based on an updated capacity report.

The appellant and the Council were unable to agree on the wording of the planning obligation so the appellant submitted a unilateral undertaking. The matter was then remitted back to the Reporter who determined that this unilateral undertaking was insufficient and therefore a condition was imposed requiring a planning obligation to be entered into prior to the occupation of the 100th residential unit.

No specific sum or methodology for calculating the education contribution was included within the condition. Therefore there is still dubiety about how much will require to be paid, if anything.

However, this does not make the condition unacceptable – as demonstrated by the appellant when it proposed the condition and referred to a previous appeal which was dealt with in the same way.

Due to the time spent attempting to negotiate the planning obligation, drafting the unilateral undertaking which was then rejected and the matter being remitted back to the Reporter, this contributed to the appeal decision taking 2 years to be determined.

Access

The Council also raised an issue about the proposed access to the development being unclear. The Council contended that the access provisions would not provide adequate sight lines. In addition, the local residents expressed concern about access being taken from an existing residential area. The appellant agreed to remove the proposed access from the existing residential area and this was accepted by the Reporter. The Reporter also clarified that access details would be covered by condition requiring approval as part of a reserved matters application.

Conclusion

This decision is a further reminder to Local Planning Authorities that they must keep their 5 year land supply up-to-date to ensure control of development within their authority area. Otherwise, as is the case here, development which would otherwise be unacceptable will be permitted. The Council had designated and relied upon one large site in the CGA to provide a substantial number of homes. The failure of this site to come forward has played a role in the Council changing its policy from allocating a small number of large scale sites to dispersing housing across a larger number of smaller sites.

While this development is located in an area of green belt land, due to the shortfall of housing land supply the housing policies of the LDP have to be considered as out of date. In which case, the presumption in favour for sustainable development is a significant material consideration. The determination of the development becomes a balancing act between the benefits of sustainable development against its adverse effects. Furthermore, paragraph 33 of SPP requires the adverse effects to "significantly and demonstrably" outweigh the benefits. In this instance the Reporter found that the adverse effects of development on green belt land did not meet this threshold.

Read more about our UK Real Estate and Planning Practice.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions