The “public interest” is a concept that pervades our laws and conditions every decision made by our public servants and elected representatives from central government all the way down to our humblest parish assemblies. It is a tenet that, more than any other, defines the system of societal administration we call democracy. We think we know what it is but can we actually define it? It has played a part in all our lives at some time or another but we really only become aware of it when decisions we may not agree with are made in our name.
There have been countless attempts to define it and even arguments that it should not be formally defined at all. So take your pick.
One I like and which may be appropriate to the subject of this particular blog is
“It [the public interest] is approximated by comparing expected gains and potential costs or losses associated with a decision, policy, program, or project.”
There you have it, succinct and to the point.
However you define it one thing is for certain. The key to assessing the efficacy of any public interest decision is transparency of the decision-making process, including the balancing of competing interests.
This must lead to the public having confidence in any decision taken. This can only happen where all relevant information is made available in an open and cooperative way. Any attempt on the part of the holder of the decision making power to restrict the dissemination of information will always be viewed with suspicion and that includes the argument that such information is commercially sensitive.
Such restrictive action will alway be taken to mean that the information so restricted is likely to be injurious to the arguments being propounded by the withholder. No better example of this is the now notorious so-called December 2016 PwC report, the contents of which have been so zealously guarded by its commissioners. An equally topical example is the Government’s Yellowhammer document which most obviously does not support the Government’s case. The immediate question is always the same. Why the restriction? What do they have to hide?
For what I am sure are the best of motives our three district local authorities (or more accurately 2 districts and 1 borough) known collectively as the North Essex Authorities (NEA) have alighted upon a project to build a number of new settlements that they refer to by the sobriquet of “garden communities” whilst others prefer the less prosaic “new towns”.
The NEA’s reasoning for treading this path centres on the view that demands being put on them by central Government for the delivery of large amounts of new housing impacts negatively on existing communities. They argue that said communities are forced into rapid and unsustainable levels of growth whilst the additional infrastructure required to support this growth is all too often unfit for purpose, is almost always late in arriving or, in too many instances, fails to arrive at all.
This problem has been exacerbated by the fact that the NEA’s local plans are either out-of-date or simply not equal to the task of catering for all this extra housing with the result that the NEAs have been marginalised when it comes to managing growth within their respective jurisdictions.
As a consequence the NEAs have got together in order to produce a new common plan that advocates a strategy of concentrating the bulk of all new development, in particular housing development, in predesignated purpose designed locations so that the necessary infrastructure such as schools, community centres, healthcare centres, public transport, etc are committed at the outset and delivered in a timely fashion.
So what’s not to like?
Well in conceptual terms very little actually. Sympathetically located planned development that introduces infrastructure as it is needed coupled with a proportionate state-of-the-art sustainable public transport system would appear to the majority of us as the right way to go. It seems that most people would be happy to see these principles applied to new housing projects.
If only it were that simple!
When it comes to the real world application of these principles, the devil is very much in the detail. And so it has proven to be the case with the NEAs’ garden communities/new towns proposals now under consideration.
The efficacy or otherwise of the NEA’s proposals as they relate to the practicality and feasibility of their implementation must wait for another discourse (watch this space). What I seek to develop here is the argument relating to the public interest as it pertains to the perceived alternatives available to the NEAs. These being either the forceful re-purposing of land for development through the use of compulsory purchase powers if necessary or the more traditional and conciliatory practice of allocating land for development by private interest according to prevailing planning policy and which has been brought before the authority under the call for sites process.
I must make it clear at this point that, as a Braintree district resident my focus is on this district although there are clear implications for the whole NEA scheme.
In all the melee surrounding the GCs proposal we must not forget that the purpose of the exercise before us is to produce a local plan. The GCs scheme is simply part of this process and is just one way of delivering the objective, namely to meet the authorities’ requisite development obligations particularly with regard to the delivery of housing. That said, any contribution made to the local plan by the GCs project must be tempered by the risks that such a publicly led scheme might visit on the taxpayer as compared to the much lower risks associated with private development schemes.
So it is a matter of balancing the benefits derived from channeling future development through the GCs with the undoubted higher level of risk to the taxpayer given that it is her money that will finance the project, if not absolutely, then in cashflow terms. That said, the benefit derived is not solely measured in terms of the upside features of the GC strategy. There is also the matter of dealing with the legacy issues that arise which, in BDC’s case are acute as this blog will explain. Notwithstanding, the overriding consideration when deciding how our NEAs should proceed must be how the public interest will best be served.
Whilst there has been much discourse on the reasons why we have such a serious housing shortage in this country there is no dispute that today too many people have little realistic prospect of living in their own home irrespective of the means of tenure. Consequently there is little prospect of the Government taking the pressure off housebuilding any time soon.
Irrespective of one’s own view as to the efficacy of this housebuilding programme we have got to get used to the idea that many more houses will have to be built and that this needs to be managed in the interests of both the would be occupiers and the indigenous population alike.
A house has to be built somewhere. An obvious observation you may say. But the disruption and disturbance it causes will be felt by those closest to it whether this is on land destined to become a GC, on the edge of an existing settlement, in the centre of town, on brownfield land or in the countryside. The public interest in this regard is largely neutral. It does not favour one site over another. Of far more relevance is whether the house need be built at all.
And this is the fundamental question where the NEA’s GCs proposals are concerned i.e. irrespective of their efficacy, are the GC’s actually needed and therefore are they in the public interest? This is a different question to that of whether the GC’s would provide a better living environment than building houses on the edge of existing towns, etc and that they might more effectively contribute towards the goal of our moving to a greener low energy society. These laudable attributes are not contested here as there is a more fundamental question to be answered first.
Under current regulations each planning authority is required to take on its share of the housing delivery load. This is achieved under an allocation mechanism based on the authority’s objectively assessed housing need (OAN). In BDC’s case this amounts to some 716 homes per annum or 14,320 over the local plan period up to 2033. This figure has been accepted by the planning inspector.
So how might things go in BDC’s case?
Well the first thing to note is that BDC has 98% of its housing need up to the end of the local plan period (2033) covered in the form of planning permissions already granted. Whether the GCs scheme were to go ahead or not these homes will be built. These permissions will not and cannot be revoked. All the homes involved will be built on land other than that designated for the GCs with the bulk consisting of unallocated sites.
It might be reasonably supposed that constructing homes on GC land will cause the current practice of building on town edge sites to cease, a major reason for their justification. Unfortunately this is not going to happen until at least the end of the current plan period and probably well beyond. This is largely because BDC has been obliged to grant so many permissions for development, the bulk being on unallocated land as a consequence of having an out-of-date local plan.
But it doesn’t stop there. Today BDC is holding a backlog of some 40 planning applications totalling more than 5,000 homes. We cannot say how many of these applications will be approved but, in the absence of an up to date local plan BDC has little defence where an application meets the NPPF’s tilted balance test irrespective of whether the said application is sited on allocated or unallocated land. It is therefore likely that, together with some successful appeals, the greater part of these pipeline applications will succeed. For the purpose of this analysis I am assuming 80% will pass i.e. 4,000 homes.
Furthermore it should be noted that the vast majority of these applications have been submitted within the last 24 months. With BDC’s section 2 plan not expected to be adopted until some time in 2021 it will be in the best interest of future applicants to time any impending applications such that they fall within this window. This points to the prospect of many more applications arriving in the near future, perhaps at the same rate as in the last 2 years. This could result in many more homes being approved, certainly in the hundreds and, based on past performance, probably in the thousands.
If, for any reason, the NEA’s GCs proposals are rejected by the local plan inspector for a second time then, unless there is a quick volte-face in policy on the part of the NEAs such that section 2 of the plan is given priority over section 1, the adoption of section 2 could easily be delayed for a considerable further period beyond 2021. The clear implication is that even more off-plan applications could be submitted while the authority’s defences are at their weakest.
As if this were not enough, as part of its section 2 plan BDC has designated a number of so-called Strategic Growth Locations over and above the GCs. This land has space for a total of 5,000 homes. Since these locations will be “on-plan”, the adoption of the section 2 plan, whenever that may be, will release this land for development.
There is also the matter of BDC’s undeveloped brownfield sites. According to BDC’s own Strategic Housing Land Availability Assessment (SHLAA) there is sufficient brownfield land in the district to provide additional housing to the tune of some 6,000 new homes (this does not include Andrews airfield which is included in the WOBGC). The Government has lowered the bar when it comes to securing approval for applications on brownfield sites (aka previously developed land (PDL)) and has made clear it wants planning authorities to prioritise the development of brownfield sites ahead of greenfield sites.
BDC has produced, as it is required to do, a brownfield register detailing land that it considers can be developed. However this register lists sites that can accommodate just 670 homes, barely a tenth of the brownfield land available within the district. A cynic might surmise that BDC is less interested in brownfield sites as they do not qualify for New Homes bonus.
BDC has argued that it has listed all the brownfield land that is suitable for housing development but this is at odds with its own data. According to the most recent version of its SHLAA (produced in 2016) much of this brownfield land has been ruled out simply because it is contrary to existing planning policy, a policy it readily admits is out of date.
Under a column in the SHLAA headed “Conclusions” the vast majority of comments pertaining to these brownfield sites allude to the possibility of their being brought into use through a change in planning policy and that this change could be achieved through the device of amending the new local plan.
The most prevalent comment within the SHLAA as it relates to these sites reads thus
“Site not considered under current strategy - could be considered under new local plan”
Unless BDC holds unpublished evidence that contradicts these conclusions it is not reasonable to argue that the majority of these sites are unsuitable for development. Some do carry planning permission and a small number have been at least partially developed. Taking into consideration these sites and those sites that appear in the register it seem reasonable to argue that there are sufficient brownfield sites remaining within the Braintree district to support a further 5,000 homes.
So taken all together BDC is committed to building 14,000 homes by virtue of permissions already granted. It is likely to approve a further 4,000 currently held in its application pipeline with more to follow. It is obliged by central government policy to prioritise development of its brownfield sites providing for a further 5,000 homes and it has elected to develop several strategic growth locations thereby provided potential for yet another 5,000 homes.
Notwithstanding the possibility of some small amount of double counting this gives a grand total of 28,000 homes that BDC will likely build without any contribution from the GCs. A figure that is twice its OAN for the current plan period. At the rate of 716 completions per annum this meets BDC’s housing delivery obligations until the year 2053. This huge number has arisen in large part as a consequence of BDC failing to get a local plan into place.
And so, in the context of these albeit unofficial findings we must again ask whether the NEA’s GCs proposals are in the public interest since every home built on such land, as things stand, will most demonstrably be surplus to requirements since BDC can fulfil its housing delivery obligations to beyond the middle of this century without it.
To be clear, I am all for the managed construction of homes especially when this leads to a timely delivery of infrastructure but not at any price. Given a situation where the local authority must seek out new opportunities to build houses in order to meet it obligations, a well thought out strategy that focuses on GCs would make sense. In BDC’s case however it must surely work off its huge backlog of existing permissions and settle its obligations regarding undeveloped brownfield land before embarking on such a high risk venture as the NEA’s GCs scheme.
It should also be noted that the OAN works both ways. It not only determines what must be built but also what can reasonably be built taking account of expected growth and market conditions. In the current circumstances, given BDC’s surfeit of permissions and other declared development plans as detailed above, proposing yet more substantial numbers of homes within the GCs will be liable to destabilise the housing supply & demand equilibrium within the districts. There is already a serious question mark as to the employment opportunities that will be realised under the NEA’s current plan proposals. Maintaining house prices where employment is a challenge and where too many houses are being produced is bound to be problematical.
It seems to me inconceivable that the inspector will be taken in by the new evidence presented by the NEAs especially given BDC’s parlous situation that places it in a substantial housing over supply position even without recourse to the GCs. In as much as the fundamentals may have changed since the NEA’s first submission of its new local plan these have clearly moved in the wrong direction.
BDC has been hoist by a petard of its own making by failing to get a local plan in place despite 7 years of trying. By ignoring the inspector’s advice to take option 1 and going for option 2 instead BDC has added immeasurably to its problems by leaving a very wide stable door open for far longer than it needed to and it will likely take a further 2 years under the most favourable scenario (barring any change in policy) before it can be finally closed.
I regret that BDC’s actions have led (and will continue to lead) to so many homes being built off-plan but this cannot now be changed. Let us therefore not compound what has been a catalogue of errors and poor decision making with the high risks associated with this poorly conceived, overly ambitious and grossly under capitalised project which, in terms of housing, is most obviously surplus to requirements. Where the propounded GCs proposals are concerned there can be no conceivable basis on which the public interest can be said to have been served.
Does this mean that there should be no housing projects based on so-called garden community principles? The answer is an obvious no. It is abundantly clear that our society must move to a more sustainable way of living at the earliest opportunity and the GC model promises much in this direction. The dichotomy that exists today is not about concept but implementation. We must find a solution that garners public confidence and produces a high level of expectation that it can actually be delivered. That confidence does not exist today.
For now at least leave housebuilding and it associated risks to those who know what they are doing but nevertheless hold them accountable for their actions such that, as residents take up occupation, they can be assured of good quality and value for money and that those affected by such developments are best served through the adequate and timely provision of infrastructure.
If BDC insists on pursuing the s106 route when looking to secure developer contributions (as opposed to CIL) then it must smarten up its act and work for a better outcome. Having granted so many permissions, when it comes to securing infrastructure funding, BDC is now most obviously in the driving seat. Developers are reporting record profits. Arguing that they cannot afford the infrastructure overhead made necessary by their projects rings hollow.
S106 negotiations are not conditioned by the state of the local plan, the five year land supply or past housing delivery performance. They rest solely on whether a planning application would or would not otherwise be granted. Developers need permissions in order to advance their business. BDC is no longer in a position such that it needs to grant permissions for the purpose of meeting its numbers. The outcome of any s106 negotiations going forward should reflect this reality.
If the NEAs are looking for a headline project suitable for the 21st century they should look to commit to the delivery of a sustainable integrated public transit system that is all inclusive. The case for this is overwhelming and has very little to do with GCs per se. Society needs to urgently generate a new transportation paradigm as part of its strategy to counter the unequaled challenge that is climate change. Indeed it is very clear that no such strategy can succeed without a fundamental change in our traveling habits. We owe it to our children, grandchildren and future generations. Let us not add further to their woes.
NEAs, listen to your public and be genuinely prepared to alter your ideas in the light of their feedback. There is a loud and vociferous voice emanating from a large section of the community calling on you to reconsider your ideas for the future development of the districts. This does not advocate the scrapping of GCs outright but rather to finesse the approach such that the primary goals can still be achieved but in a way that respects the interests of those that will be otherwise adversely affected and instills confidence in the majority that such proposals will be equal to the challenges asked of them.
The device of compulsory purchase now being proposed is unnecessarily, confrontational and will lead to division, delay and much extra expense and significantly increases the chances of this already highly challenging project failing. The community are not saying no. On the contrary, they are as keen as you to find a solution to both the housing question and the climate change threat. By working with them you will better understand what is and is not in the public interest and arrive at better decisions in the name of those you represent.