Supplementary memorandum by The Countryside
Agency (AFH 62(a))
BRIEFING NOTE ON COUNTRYSIDE AGENCY SITES
FOR SOCIAL DIVERSITY POLICY:
PROPOSED POLICY AND LEGAL ADVICE
INTRODUCTION
In response to the failure of current planning
mechanisms to deliver the affordable housing needed in many rural
areas the Countryside Agency has developed an alternative policy.
This has been given the name, sites for social diversity (SSD).
The form and detailed content of the policy has evolved through
discussions with a wide range of groups who are involved in the
provision of affordable housing. (A list of those consulted appears
at Annex A.) We have submitted the policy for legal opinion and
now have the QC's opinion which is in two parts.
OBJECTIVES OF
SSD
The objective of the SSD policy is to redress
the socio-economic imbalance which exists in rural communities
as a consequence of the operation of the private housing market.
The policy has been framed so that it complies
with the existing legal framework for land use planning and is
in line with the objectives and guidance of PPG3. It therefore
has the following characteristics:
— it seeks to contribute to the government's
objectives of:
creating mixed and inclusive communities
providing a decent home for those who need one
promoting sustainable development, encompassing
social, economic and environmental needs; and
— it would assist the Government to
meet its Rural White Paper objective of increasing provision of
social and affordable housing in order to sustain balanced communities.
The policy also seeks to overcome some of the
obstacles which limit the success of existing policies in that:
— it is a plan-led approach and therefore
offers transparency and certainty. This is required by developers
and local communities;
— it will reduce the development cost
of the land subject to SSD allocation, making it financially viable
to provide affordable housing, including social rented housing
on site; and
— it provides a mechanism for meeting
social needs without compromising conservation of the countryside.
APPLICATION
A local authority will allocate SSD in those
parishes where it can be shown that compared with the regional
pattern there is currently an imbalance in the socio-economic
profile of the population and housing provision of specified parishes.
This will be by reference to information on local incomes and
profile of the existing housing stock, by council tax or land
registry records. These parishes will also be likely to be subject
to policies of development constraint as part of a suite of polices
aimed at conserving the countryside. Planning permission will
be given on these sites when the development provides the housing
needed as shown in a current and robust Housing Needs Assessment.
A draft of a local plan policy is attached.
INSTRUCTION TO
COUNSEL
The Countryside Agency with advice from a planning
solicitor instructed counsel for an opinion on the legality of
its proposals. The instruction included a statement setting out
the background and objectives to the policy along with a draft
local plan policy. Counsel was asked for opinion on five areas:
— When an LPA allocated a site for
social diversity would there be grounds for legal challenge on
the grounds of unlawfulness of a policy whose purpose was to restrict
tenure or occupation rather than use?
— If an LPA has undertaken a robust
Housing Needs Assessment, does C6/98 already provide sufficient
scope for requiring higher levels (100%) of affordable housing
in settlement of less than 3,000 population?
— Can the designation of sites for
social diversity be protected in the long term on the basis of
projected rather than current housing need, with release being
promoted through the policy of Plan, Monitor, Manage?
— Could sites for social diversity
avoid the problem of incompatibility sometimes associated with
quota sites where there may be no direct relationship between
the planning obligation and affordable housing?
— Would the occupancy criteria, which
were rejected as unlawful in the Royco case, be subject to the
same criticism in the light of the development of affordable housing
policy?
LEGAL ADVICE
The legal opinion has been given in two parts.
The first deals with the legality and the second specifically
with PPG3.
Legality
This was founded on a detailed examination of
case law and guidance and concluded:
— that the policy was likely to be
a source of objection to the Deposit Plan, however
— the designation would survive legal
challenge despite the fact the purpose of the policy was to restrict
tenure and occupation rather than distinguish between uses. This
is because the need for housing is accepted as a material consideration,
as is the need for particular types of housing;
— that future need for affordable housing
will be one of a number of material considerations and the decision
will depend on a reasonable balance being made of all material
considerations in any given case. The safest sites would be those
which would not have been allocated at all but for the particular
need;
— the objective of the sites for social
diversity complies with government policy in relation to promoting
mixed communities and avoiding social exclusion. Moreover as much
of what is considered "law" is in fact guidance in relation
to affordable housing LPAs can depart from guidance for good reasons;
and
— that the policy does not infringe
Human Rights legislation as long as interference was justified
as being necessary to achieve a good social and economic balance
within the community and proportionate to its impact on the individual
concerned.
Relationship with PPG3
This was based on further clarification of the
policy provided by the Countryside Agency through its solicitor.
The opinion concluded:
— the objectives of SSD policy fall
within the objects at the heart of PPG3 in its concern to provide
for rural communities to re-establish or retain socially inclusive
mixed communities with housing available for people with local
connections;
— it is appropriate in the light of
PPG3 for local planning authorities to allocate SSD sites in local
plans where their use is justified;
— the advice of PPG3 contemplates that
where such sites are proposed to meet local needs for affordable
housing they may be allocated in local plans;
— the reservation of housing provided
within SSDs for local needs is in accordance with PPG3. But the
policy could be in conflict with PPG3 in so far as the policy
could suggest that in all cases where the proposal is to provide
rural affordable housing the entire site should be reserved for
that purpose.
(In the detailed explanation the opinion states
that it would be inappropriate to express the general policy as
requiring 100% affordable housing as a starting point. In some
instances this may be appropriate but would need substantial justification
in the context of the local plan's preparation.)
— Care should be taken in the explanation
of the objective of the policy with the use of Council Tax bands.
(The detailed explanation is concerned that these
may change over time and not offer the perpetuity being sought.
It advises that perpetuity should be expressed as providing homes
for those with local connections and remain restricted to occuaption
by those with a local need in perpetuity.)
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