95 dwelling scheme granted on appeal at Thames Farm, Shiplake, Oxfordshire

DPDS finally achieved planning permission on Wednesday for a major housing scheme in South Oxfordshire after 6 years of twists and turns.

The potential development of the site in South Oxfordshire has encountered local opposition.  No surprises there perhaps.  But it also appears to have led to a debate at the top of Government about the role of neighbourhood plans and, it seems, to the Government changing the housing land supply goalposts, ultimately to no avail.

DPDS began working for the owner of a site at Thames Farm in Lower Shiplake (in Harpsden Parish of South Oxfordshire District Council), to the south of Henley, in 2011.  Since then, we have prepared and submitted two applications and two appeals on the site, and the case has resulted (directly or indirectly) in legal challenges being heard twice in the High Court and once in the Court of Appeal.

The first application, for 110 dwellings, was submitted in July 2013.  It was refused and we submitted an appeal in 2013, resulting in a Public Local Inquiry in December 2014.

South Oxfordshire’s Core Strategy identified a policy ring fence around Didcot, with the “Rest of the District”, in which the site is located, forming a separate policy area for the purposes of housing supply.  The local planning authority claimed that it could demonstrate an adequate five year housing land supply in the Rest of the District, but not in Didcot.

Our December 2014 appeal evidence succeeded in pulling down this ring fence and opening the door for other schemes to get permitted.  The Inspector’s decision letter, dated May 2015, concluded that “whilst it may be possible to demonstrate a 5 year supply of deliverable housing sites in relation to RotD, supply is likely to fall well short of that level both for Didcot and the District as a whole.”

This became a seminal decision.  Where an LPA claims to have sufficient housing supply in a policy area in which an application site is located, but not across the whole District/Housing Market Area, this does not comply with paragraph 47 of the NPPF, so paragraph 49 and then 14 are engaged.

However, that was not the end of the story by any means.  The Inspector dismissed the appeal, ultimately concluding that “the scheme would have a severe adverse residual cumulative effect on the safety and convenience of highway users. I attach great weight to this harm, which weighs very heavily against the scheme.”  He also made comment about potential landscape impacts, although made it clear that these were not sufficient to justify withholding the grant of permission on their own.

This came as a surprise.  The local planning authority had not included highways safety as a reason for refusal.  Our client challenged the Inspector’s decision in the Courts.

In October 2015 the High Court found the Inspector’s decision to be procedurally unfair on two grounds[1]:

  1. The Inspector did not raise highway safety issues at the inquiry, so the appellant did not have the opportunity to respond;
  2. The highway safety issue could have been remedied via the use of a Grampian condition.

The decision was therefore quashed. However, by this stage and following consultation with SODC officers the client had agreed to resubmit a planning application for 95 dwellings, largely to deal with the Inspector’s landscape comments.  This was submitted in March 2016.

SODC appealed to the Court of Appeal[2] regarding the 110 dwelling application on the basis of the two above grounds.  The Judgement was released In November 2016.

Their Appeal succeeded on the first ground: “the question of highway safety and in particular the safety of the pedestrian crossing at the War Memorial was sufficiently raised both before and at the inquiry both by local residents and by the inspector himself as to acquit the inspector of any procedural unfairness.”

But SODC’s Appeal ultimately failed, and the Inspector’s decision remained quashed, because the Courts found that the Inspector could have dealt with the issue via a Grampian condition.

So the inquiry process for the 110 dwellings was restarted.  In the meantime the 95 dwellings scheme had progressed well and in September 2016 the Council’s Planning Committee had considered the application.  The officer recommendation was for approval, on the basis that officers accepted that the Council could not demonstrate an adequate five year housing land supply across the housing market area, and that the site was sustainable.  The Committee refused the application, contrary to officer advice so, in October 2016, we submitted an appeal against this refusal, requesting that the two appeals were co-joined.

Intriguingly, in December 2016, Gavin Barwell, the then Minister for Planning, released a Written Ministerial Statement (WMS) which moved the goalposts.  It reduced the NPPF’s five year housing land supply target down to three years where a made neighbourhood plan has been in place for two years or less.  This was immediately challenged in the Courts by a consortium of developers, but consideration by the High Court is taking some time.

The Joint Henley and Harpsden Neighbourhood Development Plan was made in April 2016.  The WMS meant that SODC’s housing land supply target was reduced in our case from five years to three years overnight.  A coincidence surely?

Perhaps not.  Roger Hepher, director of Hepher Grincell, strongly hinted in Property Week (5 January 2017) that the WMS was released to stop development on our site.  He described the Joint Henley and Harpsden Neighbourhood Development Plan as “one of the flagship neighbourhood plans”.  He explained that “It was only adopted in April 2016, and almost immediately South Oxfordshire district acknowledged it didn’t have a five-year supply; therefore the neighbourhood plan must be regarded as out of date. That caused outrage, and I think that’s what’s led to this latest initiative.”

Interestingly, Planning published an article in its 27th January 2017 edition featuring Shiplake in the context of the WMS. This included a quote from Paula Fox, Development Manager at SODC, who said “We lost our five year housing supply in May last year (20th May 2015 decision in respect of Thames Farm appeal), and while we have been doing our best to manage the situation, the WMS is very welcome…It will be particularly useful in fending off speculative applications on non-allocated sites…and could have significant influence on the Council’s position in a forthcoming appeal for up to 95 units on the edge of Shiplake”  (i.e. Thames Farm).

John Howell MP represents Henley-on-Thames which incorporates the appeal site.  His Open Source Planning laid the groundwork for the neighbourhood planning agenda.

Despite the ever increasing obstacles, we continued with the 95 dwelling appeal, and withdrew the 110 dwelling appeal on the basis that the 95 dwelling scheme had a lesser impact.

The inquiry was held in early June 2017.  The Inspector’s decision was released on 2nd August.  The Inspector allowed the appeal on the basis that SODC cannot demonstrate three years of housing land supply and that the proposed housing scheme satisfies the three roles of sustainable development set out in paragraph 7 of the NPPF.

DPDS has a strong and persuasive understanding of the housing land supply situation in South Oxfordshire, and in many other housing market areas.  We prefer to work with local planning authorities to achieve a positive recommendation, but we have plenty of experience of appeals too.

Equally, we are involved in helping local communities produce neighbourhood plans.  In principle, neighbourhood plans can work well by enabling local people to understand the impact of housing undersupply, and to enable them to determine how best to meet their share of housing needs.  This should encourage local people to support housing development, if it is in the right place and of the right quality.

Where this clearly fails is when neighbourhood plans are used to stifle development.  As the Government’s own Housing White Paper, released in February, noted “We need to build many more houses, of the type people want to live in, in the places they want to live.”  We agree, and hope that all parts of government, both local and national, agree too.

For further enquiries relating to any of the above, please contact Lyndsay Kane on 01793 501601 or lkane@dpds.co.uk

[1] Claire Engbers v Secretary of State for Communities and Local Government and Another [2015] EWHC 3541 (Admin)

[2] Secretary of State for Communities and Local Government and Another v Claire Engbers [2016] EWCA Civ 1183

The full appeal decision can be read here

For further enquiries relating to any of the above, please contact Lyndsay Kane on 01793 501601 or lkane@dpds.co.uk

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