RE: Persistent Under Delivery and the NPPG

2015-07-22T12:04:09Z

Hi Adam, I agree that the key is how you define the OAN requirement. Let's take for example a simple 15yr Local Plan requirement from 2011-2026 of 1,500 dwellings at 100 dwellings pa. The 1,500 is your full OAN for the plan period and that doesn't change, and the basic OAN for the next 5yrs 2015-2020 is 500. Let's then say that your LA actually only saw 300 dwellings delivered instead of 400 over the 4yrs between 2011-2015, which then means that your remaining full OAN or housing requirement for the remaining 11yrs of plan period is 1,200 (not 1,100) as you've still got to make up the 100 shortfall in delivery from the start of the plan period. It's not 1,500 + 100 as your plan's overall OAN (ie. demand-based housing requirement subject to any policy-on amendments for seeking higher growth or curtailment under NPPF para.14 exceptions, and/or adjusted as a result of DtC agreements with neighbouring LAs for more or less housing) for the plan period doesn't change. The requirement for allocation/delivery over the next 5yrs is what does change and is what the 5% or 20% buffer applies to!

So the Hambleton S78 inspector appears to be applying the Sedgefield method in saying the requirement over the next 5yrs is the basic 500 plus the 100 shortfall/backlog in delivery from previous years of the plan period, and then the 5% or 20% buffer is then applied to that 600 requirement (ie. 630 or 720) - rather than the Liverpool method seemingly advocated by the SoS and Huby inspector of not also applying the buffer to the shortfall and being able to spread the catching up of that backlog/shortfall over the full remaining plan period (which would mean the next 5yrs requirement is simply the basic 500 plus the 5% or 20% buffer = 525 or 600).

Remember that this buffer allowance is brought forward from the later years of your plan period, thus effectively reducing your residual housing requirement for the latter part (2020-26 in my example), and the full OAN for the whole plan period is unchanged (still 1,500 over 15yrs in my example).

Seems to me it's a bit of pot luck which approach is taken and which inspector you get! Both do the job of increasing the supply of land in the first 5yr period simply by applying the 5% or 20% buffer. Perhaps also partly depends on the LA's situation in terms of having a 5yr housing land supply or not, and how up-to-date their Local Plan is. The problem I see is one of realistic delivery and the prospect of catching up the backlog within 5yrs rather than over the full plan period - ie. if it's unrealistic based on past underdelivery by the housebuilding sector to be able to fully catch up that shortfall/backlog within the next 5yrs, then that shortfall's just going to increase all the more for subsequent 5yr periods, with the 5% or 20% buffer allowance enhancing the 5yr requirement all the more, and thus the Sedgefield approach makes it even less likely to achieve than the Liverpool method! Fair enough allocate and manage the release of sufficient potentially deliverable sites to meet the needs (incl. shortfall and buffer) over the next 5yrs, but if the housebuilding sector doesn't or isn't capable of delivering on that then it really doesn't seem to be right to penalise the LA for underdelivery that's out of their control, and if they're not going to build on the supply of deliverable sites then what's the point of bringing forward even more sites just for the hell of it!

PS. I also understand that the inspector for neighbouring NewcastleGateshead's joint Core Strategy (recently adopted) recommended removing their phased release policy for their now former Green Belt sites (I think because they didn't have a 5yr supply of deliverable sites) which has effectively meant a free-for-all for developers over the whole plan period in an attempt to increase delivery prospects over the shorter-term rather than the LAs being able to manage the release of sites in a more sustainable way while prioritising development of urban brownfield sites. Kinda defeats the object of proper sustainable planning!

RE: Persistent Under Delivery and the NPPG

2015-07-22T11:33:42Z

This is just getting silly now. Way too much time spent on pedantic detail and nothing on common sencse. If you want to be pedantic and get bogged in DETAIL the Inspector is wrong for a start with the bit in BOLD. Your 'housing requirement' is NOT necessarily your FOAN or your Demand. My authority cannot meet its FOAN or its Demand so its REQUIREMENT is NOT its FOAN. Our plan REQUIREMENT (which we measure 5YS against) is what we can sustainably deliver in the city in the plan period. The rest of our FOAN will be met in adjacent authorities through DtC. You must meet in full your FOAN but not necessarily in your own plan/area...that's why DtC exists.

Secondly, if you do NOT apply the buffer to the shortfall you WILL still be REQUIRING more DELIVEABLE sites in the next 5 years to allow for choice and competition in the market (which is what the NPPF says the buffer is for).

At any time you calculate the 5YS through Sedgefield you will set out a 5 year requirement to calculate against...

You will REQUIRE over the next 5 years :

Your annualised plan REQUIREMENT (Plan Target/years in plan) is met for EVERY YEAR of the next 5 years

PLUS

A 5% or 20% Buffer to allow choice and competition in the market)

PLUS

Any shortfall since the start of the plan is made up

You will therefore be requiring enough DELIVERABLE SITES to make up any shortfall AND meet your annual requirement AND have a buffer. Your 5 year supply WILL require a larger pool of sites than you need.

I'm sorry but this completely academic approach is nonsense, especially given the confusion and uncertainty and lack of consistency of Inspectors and the SOS.

Why not use a bit of good old common seense here? What is it that we are trying to achieve? To make sure that your housing requirement is delivered whicle meeting the objectives of your forward plan.

This whole 5YS thing is actually SLOWING down the delivery of housing by leading to long and complex appeal debates and Examination discussions.

To cap it all, if you grant planning npermission for a site because you have not got a 5YS there is no need to make sure that site you are granting is deliverable. You can be forced to grant permission for an application which cant be delivered because you dont have a supply of deliverable sites!

Your plan can be found SOUND at Examination and the week after you could not have a 5YS and therefore your policies for the supply of housing are out of date.

Completely bonkers.

RE: Persistent Under Delivery and the NPPG

2015-07-22T11:25:12Z

Agree absolutely with you Adam and the Inspector.

Now DCLG should simply include the inspector's clear definition of housing requirement (post adoption of a plan) in NPPG...then it would be job done and we would not have inconsistent appeal decisions. Of course this should have been picked up when NPPF was drafted in the first place.

RE: Persistent Under Delivery and the NPPG

2015-07-22T10:46:23Z

For anyone out there with any energy left to look at this issue one more time, you may be interested in the recent S78 Appeal decision APP/G2713/A/14/2218137 Land off Station Road, in Hambleton.

At para 32, the Inspector says the following:

"I note the recent Secretary of State decision that states that the buffer should not be applied to the shortfall from previous years’ under-delivery. I also note that my colleague in the Huby decision adopts this approach. However, with the greatest of respect, the purpose of the buffer is to increase the supply of land in the first five year period; it is not to alter the demand side of the equation. The housing requirement, ie. the demand, is the FOAN plus the shortfall from previous years. The Framework states that authorities are required to identify a five year supply against their housing requirement plus a buffer of 5%. Consequently, the buffer can only be added to the requirement once the shortfall has been added on. To do otherwise would be to ignore a part of the requirement (the shortfall) in ensuring that there is a sufficient supply to meet that requirement, plus an additional 5%."

This seems to actually define what is meant by 'housingn requirement' in the NPPF, and I have highlighted that definition. For those of you seeking clarity on the issue, what this does highlight is that the SoS decision is not definitive. You will know from my previous posts that I agree with this decision, but I would ask you to focus on the definition of what the housing requirement is. If you agree with this definition, then you simply cannot apply the buffer before the shortfall. If you don't agree with it, I'd welcome your thoughts on what that definition should be.

RE: Persistent Under Delivery and the NPPG

2015-06-17T11:42:15Z

Adam

I think some of the Nottingham authorities have been found sound with phased delivery to effectively backload delivery. I'm fairly sure Nottingham City had an approach where they tranched their delivery over their entire plan period gradually increasing delivery and they were found sound. I think a couple of other Nottingham authorities did this too but would need to check.

I might have mentioned this previously but I recall the Inspector considering the East Staffs Plan suspended the Examination. The main reason was relating to the housing needs of Birmingham I think. In his letter though I recall he said that the authority could not establish a 5 year supply and that they should explore/consider backloading their delivery so that they could get a 5 year supply. This was very interesting reading.

I am therefore pretty sure that phasing/backloading has been allowed. I'm not sure if East Staffs have moved on since that, it was a while ago.

I do recall reading something (maybe an Inspector's report) that said that 'boosting significantly the supply of housing' did not mean bringing delivery forward. it meant boosting deliver 'across the plan period.' and therfore phasing could be acceptable

If backloading/phasing is allowed, it pretty much kicks into touch all of the discussion in this thread about persistent under delivery and how you apply it because the premise of this is to bring forward and speed up delivery in the immediate years.

The area is obviously in a complete and utter mess. There are clearly Inspector and SOS decisions both ways and if you can phase the delivery anyway, what's the point?

RE: Persistent Under Delivery and the NPPG

2015-06-17T09:35:30Z

Andrew,

I totally agree. The quote from para 42 you provide is most helpful.

Adam (N), the point you make is an interesting one. But remember that it's not only allocated sites that count towards supply, it's 'identified' sites. So you will have your SHLAA sites that can and will contribute to supply. You would be looking at your 'developable' sites to see if any of them can be made 'deliverable'. If your allocations are not likely to contribute 100% within the plan period then you would presumably only have included the total they are expected to deliver?

The point about phasing is probably a whole discussion in itself! But if you have a strategy legitimately relying on a few large sites to meet (most of) the plan total, can you phase your trajectory so that you have a lower requirement in the early part of the plan, and a much higher one once those sites get started? I believe this is being examined at Cheltenham, Gloucester and Tewkesbury (and I am using a very broad and loose description of the issue). Is there anywhere else where this has already been examined and found sound?

RE: Persistent Under Delivery and the NPPG

2015-06-16T12:03:29Z

John thanks for a very useful and straightforward summary of the two different approaches.

Unfortunately (and perhaps sensibly) the June 2015 Somerset appeal decision cited by previous contributor, published well after the SoS decision, sides firmly and squarely with a more orthodox view and straightforward reading of NPPG.

"42. The Council suggests that the 20% buffer should not be applied to the backlog as this would result in additional housing. That is incorrect. All it would do is bring forward housing provision from later in the plan period to allow the backlog to be dealt with effectively in the first five years. The buffer affects the supply side; it does not alter the requirement."

The inspector makes it very clear that the buffer is about supply not requirement. Over the life of the plan the total requirement remains the same and so does the supply needed to meet that requirement.

At root I think there is misunderstanding from DCLG about the role of the buffer. It is not to increase build rates above residual requirements (taking into account backlog) but ensure sufficient land is available to offer choice, competition and to make achievement of planned “supply” more likely (NPPF paragraph 47). You are not aiming to complete 120% of what you should within the 5 year period but a pool of sites to ensure 100% is built.

I am still very unclear what DCLG means by double counting. Is it from the idea that double counting arises because the same 20% of identified supply is theoretically required in both the 5 year and brought forward from the later period? This is not the case. The buffer is only required when demonstrating the 5 year supply, not the overall plan provision or achievement.

It still seems perverse to me to adopt the DCLG approach where the absolute size of the buffer is fixed upfront. This bears no relationship to the scale of under-delivery. Surely the logical response to under-provision is to identify a bigger pool for developers to go at and this should be proportional to the scale of the challenge.

Of course if under-delivery has more to do with the housing market or economic situation rather than identified land itself you are still hit by having to play catch up plus demonstrating the buffer which taken together imply build rates up into fantasy land…as has always been the case with the residual method!

RE: Persistent Under Delivery and the NPPG

2015-06-16T08:43:31Z

I agree with the comments by Adam D and Andrew C about calculating the buffer against the 5 year requirements. However, there was a recent SoS Decision at Gresty Lane in Crewe that clarified when the buffer should be applied and this may deal with Andrew's double counting issue.

Basically the approach mentioned by Adam: (calculate requirement over next 5 years + shortfall) x 5/20% = 5 year supply requirement.

This approach is considered to result in double counting according to the SoS (see para 14) because the buffer is not additional requirement but additional supply moved forward. Thus, the buffer should be applied before the shortfall which would have the effect of a slightly lower 5 year supply requirement: (calculate requirement over next 5 years x 5/20%) + shortfall = 5 year supply requirement.

To comment on Adam N's point about additional supply being contrary to a recently adopted Local Plan, including a contingency (i.e. the plan delivers more than actually required) in the plan would resolve this, although this probably won't help Adam!

RE: Persistent Under Delivery and the NPPG

2015-06-15T14:00:10Z

So how does this all work for a theoretical scenario where an authority has a recently adoped Allocations Local Plan meeting its full OAN over the Plan period, but with no phasing of sites at all? If some of the allocated sites are big ones, where part of the delivery is outside the 5-year window (and therefore cannot practicably brought forward), wouldn't adding 20% (or even 5%, come to that) inevitably mean non-allocated sites coming forward...which would be contrary to the recently adopted Local Plan?

A recent appeal decision from Somerset makes interesting viewing: http://cip.southsomerset.gov.uk/Planning/StreamDocPage/obj.pdf;jsessionid=1D1B3FB7A2DFBCF19138FC86A768B3DF?DocNo=7500710&PageNo=1&content=obj.pdf

RE: Persistent Under Delivery and the NPPG

2015-06-15T12:17:24Z

Agree absolutely on this one Adam with you. The paragraph cited is full of as puzzling comments as ever from DCLG and possibly mixes up requirements and supply. In my view it adds more confusion than certainty to the debate.

Like you I have no idea what is meant by "double counting". Once again it is quite possibly the muddling of requirement and supply. The statement that applying 20% to the residual requirement "makes no sense" is of course questionable.

In the debate we need to step back and look at the purpose of the buffer which is perfectly clearly set out in NPPF. The 5 and 20% buffers are not to ensure greater delivery but to ensure that the plan delivers what it needs to by ensuring a larger pool of sites is available for developers to draw on. It is about certainty (!) of meeting the target which is of course changing each year.

Any under-delivery means that the 5 year residual requirement will rise, taking into account NPPG and Sedgefield, with under-delivery being met within the next 5 years.

To then add a buffer based on a one-off outdated/historic plan requirement figure is obviously attractive since it will lower figures but doing this is slightly perverse. An authority could be massively under-delivering which surely would suggest you need a larger not smaller pool of sites to draw from because identified site are not coming forward. Relying on a buffer based on an initial annualised development plan figure which is no longer the annual target and which makes no reference to what is happening on the ground makes no sense to me at all. So I agree with you that the requirement figure is your current figure adjusted for under-achievement and it is to this total figure (inclusive of backlog) that the 5% or 20% is added.

Quite why DCLG will not simply issue an amendment to NPPG to say how it should be calculated once and for all is beyond me, after all this has rumbled on for years!

RE: Persistent Under Delivery and the NPPG

2015-06-14T21:02:07Z

Gill,

Thanks for this. There are some rather puzzling statements in that paragraph you have highlighted.

"The 20% figure is only applied where there is a shortfall". This is not what the NPPF says. The 20% figure is only applied where there is persistent under delivery. It would be entirely possible to have a shortfall but not have persistent under delivery.

"To argue that the requirement figure then incorporates the shortfall figure and that the 20% should be applied to the whole revised requirement makes no sense." Whether or not one believes this makes no sense, it is what I understand the NPPF to say. The NPPF is rather clear about the buffer being added to the requirement. If you define the requirement as 'original requirement plus shortfall', then that's what you add the buffer to. Isn't it?

"identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land."

I have said this all through my posts on this thread. It's about how you define 'housing requirements'. So, work out your requirements, add your buffer. I don't think it could be much clearer. The buffer, as the NPPF tells us, is added to the requirements. It is not calculated once at the start of the plan period. It is calculated against the supply of sites sufficient to provide five years worth of housing. No one seems to argue that these requirements move according to delivery, so why doesn't the buffer also move to remain 5 or 20% of the requirement now, not the requirement at the start of the plan period.

If someone wants to come back on my definition of 'requirement', then please do. I am absolutely not trying to be awkward. I am trying to make sure we are all talking about the same thing.

RE: Persistent Under Delivery and the NPPG

2015-06-14T17:23:56Z

The third suggestion is that the Council has failed to add 20% to the 1300 shortfall as well as to the 5-year supply based on the annualised housing requirement figure. It is accepted that this is a planning judgment but it is totally unwarranted. There is no suggestion in Planning Practice Guidance or the Framework that this should occur. The 20% figure is only applied where there is a shortfall and is designed to increase the choice of sites available to help make up the shortfall as quickly as possible i.e. by bringing sites forward from later in the plan period. The Sedgefield approach (which does appear to be encouraged by PPG) is also trying to achieve the same purpose – requiring the shortfall to be made up in the next 5 years rather than over the whole plan period. To argue that the requirement figure then incorporates the shortfall figure and that the 20% should be applied to the whole revised requirement makes no sense. The “5 year requirement” figure (or rather the 5-year supply figure in paragraph 47 Framework) is the figure you end up with after applying the 20% buffer and adding in the Sedgefield figure. It is not just the Plan Requirement figure annualised and multiplied by 5; nor is it that figure plus the shortfall; it is the final figure you arrive at when you have taken any buffer into account and when the shortfall figure has been added in.

One from Cheshire West Jan 2015 and Sec of State endorsed -I have attached the file for information but can also be found at CLG Recovered appeal: land at Well Meadow, Well Street, Malpas, Cheshire (ref: 2214400, 7 January 2015). We are not getting the add the buffer to shortfall at appeals now and this has been confirmed by the the Gresty Road, Cheshire East decision.

RE: Persistent Under Delivery and the NPPG

2015-06-10T11:22:34Z

Andrea, I've deleted the post you refer to so as not to cause confusion.

RE: Persistent Under Delivery and the NPPG

2015-06-10T10:54:14Z

Andrea..and all...

Andrea, yes, you are absolutley right. I have been arguing with various people that the buffer should NOT be added to shortfall which has built up from the start of the plan for so long that when the SOS finally clarified it in a decision I was obviosuly so delerious with joy that in my response I got it back to front. Many apologies if it caused further confusion. I shall put myself on bread and water for a week.

Just to clarify - the 5% or 20% buffer for persistent under delivery does NOT apply to any shortfall that has built up since the start of the Plan period. It only applies to the annualised plan requirement for the 5 year period.

Many thanks to John for sharing the decision. It was also very useful in considering how much weight should be given to 'green gaps' in the absence of a 5 year supply.

I REALLY hope this is put to bed now and we dont get another Inspector's decison or SOS decision which reverts back. We really need some consistency.

RE: Persistent Under Delivery and the NPPG

2015-06-10T10:39:13Z

Jonathan P, you appear to have turned it around from what it says in John's quote. The recommendation/decision is clearly that you only add on any backlog/shortfall of provision/delivery (from within your current plan period) at the end, not before your add the buffer.

So for your plan period (say 2006-2026), you take your adopted development plan's allocation requirement and calculate from within that the requirement for delivery in the next 5yrs (2015-2020), bring forward a 5% or 20% buffer to that 5yr requirement from what's already required in your overall plan period (ie. to ensure a supply equivalent to 6yrs worth within the next 5yrs based on a 20% buffer, thus offering the greater market choice) - this isn't additional to your overall plan period requirement, just a short-term supply/allocation requirement brought forward from later in the plan period (ie. with a corresponding reduction in your post-2020 supply requirement), otherwise that'd be double-counting -, and only then add on any shortfall/backlog into that 5yr supply requirement of what residual wasn't delivered against your plan's requirement during 2006-15. But you don't need to add in any under-provision from before your current plan period (ie. from pre-2006) as that's already factored into your plan period requirement 2006 onwards, and would also result in double-counting.

Similarly, in the absence of an adopted plan requirement or if wishing to monitor against an emerging new draft plan requirement, you need to work out your OAN (eg. taking the 2011 census position as the baseline for determining future needs and applying ONS/DCLG and other alternative local projections, eg. from your SHMA), adjust it as necessary (eg. to reflect exception allowances in NPPF para.14) to determine your agreed overall (realistic/achievable/deliverable) plan period requirement, say 2011-31. Then, having worked out your next 5yrs requirement from within that and brought forward a 5% or 20% uplift, when considering any backlog/shortfall you only need to add on the shortfall 2011-15 and can disregard any under-delivery/under-provision pre-2011 against your old plan period as that's built in to your projected OAN projection-based requirement from 2011 onwards, otherwise that would result in double-counting.

Supply doesn't affect of change your plan requirement, you've just gotta find the sites through your SHLAA to make up that supply and assess that potential supply against your requirement for the next 5yrs and next 15yrs. Unless of course your requirement is adjusted downwards due to exception supply constraints arising from NPPF para.14 (or perhaps a strategic sub-regional housing market area decision), in which case your neighbouring LAs will need to be negotiated with to pick up any residual need between your OAN-based requirement and your constrained requirement, and then add that into their overall increased plan requirement!

Hope that makes some logical sense and hasn't confused things further!

RE: Persistent Under Delivery and the NPPG

2015-06-10T07:21:16Z

At last a degree of common sense. This Secretary of State decision chimes with the way we have calculated our 5 year supply and we still await the outome of a recovered appeal. I hope that the current focus on this issue eases and we get back to consistent decisions based on up to date plans.

RE: Persistent Under Delivery and the NPPG

2015-06-09T15:11:51Z

Thanks John,

It's actually a shame the term 'backlog' is used at all, as I'm assuming this relates to a shortfall in the current plan period, rather than a backlog from a previous plan period (in the absence of an up to date plan and/or SHMA).

However, that's a minor point as long as we all understand what is being said.

Just to be clear then, what we are saying is that the buffer should always be calculated against the original annual figure, regardless of supply? So you calculate it before you add any shortfall. Would you also calculate it before you 'remove' any over-supply?

If you ignore shortfall, you're ignoring one of the main reasons for having the buffer in the first place aren't you? Namely providing choice and competition in the market. If the market is not delivering, surely a greater choice of sites (through applying the buffer) would be better?

I refer back to my point about what the 'requirement' actually is, because the NPPF says you calculate the buffer against the requirement. If this decision shows that the requirement never changes regardless of supply, then that has been answered. But if someone asks you what your current requirement is, I'd guess that most of you would say it is the residual of your original plan figure minus what has already been delivered.

I would genuinely welcome a clear explanation of who or what is being double counted as well.

RE: Persistent Under Delivery and the NPPG

2015-06-09T14:24:21Z

I appreciate that this thread has been quiet for some time, but the following appeal decision from the Secretary of State may be of interest. It confirms at paragraph 14 that that in the calculation of a five-year housing land supply figure, that the backlog should be added after the 20% buffer is applied.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396572/15-01-19_DL_IR_Gresty_Lane_2209335.pdf

The relevant text states:

"The Secretary of State disagrees with the Inspector’s approach of including the allowances for each year’s backlog in the overall sum to which the buffer should be applied as he sees this as double-counting. He considers that it would be more appropriate to add the figures for the backlog once the figure for each year’s need has been adjusted to include the buffer. This would result in a slightly lower total requirement for each year but, nevertheless, one to which he considers that a 20% backlog should be applied."

RE: Persistent Under Delivery and the NPPG

2015-01-05T14:56:08Z

Hi Tim,

Sorry for the delay, I was on a secondment and not really picking up PAS emails. Here's a link which I hope will work:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2014/758.html&query=zurich&method=boolean

Paragraph 94 is perhaps the 'killer' paragraph, but that section starts at paragraph 92.

The case number appears to be:

Neutral Citation Number: [2014] EWHC 758 (Admin)
		Case No: CO/5057/2013

Oops! That's weird formatting, sorry!

Adam

RE: Persistent Under Delivery and the NPPG

2014-12-09T13:58:05Z

Adam, do you have the appeal reference for the Winchester decision you cited at the beginning of the thread?