Kinnerton loses appeal - What does it mean for Penyffordd/Penymynydd?

So the Welsh Government inspector has made his decision - Elan homes are allowed to build 56 houses , outside the settlement boundary, in Higher Kinnerton.

What can we conclude from the decision and the report?

In summary:
- we need planners to support the UDP policies and object to applications outside settlements
- we need the Welsh minister to review TAN1 and issue guidance to avoid speculative developments
- we need consistency from inspectors and a greater awareness of the wider context

Here is an overview of what happened in Kinnerton:

1. Flintshire planning officers recommended APPROVAL at the original planning committee in July 2016. They believed that the houses should be built, that the need for houses outweighed the UDP policies that protect against building on greenfield land or outside the settlement boundary. The inspector agreed with them.

2. The planning committee objected. When you listened to the debate at the July committee (sadly the webcast has now been taken down), what you heard was a lot of frustration at the failure of the policies to protect against the development. They were hunting for 'planning reasons' to object. They listed the policies in the UDP - STR1, GEN1, GEN3, HSG4 and EWP17. They objected on the basis of the loss of agricultural land and they objected about potential drainage problems. The planning officers advised against and these objections. The chairman of the committee on recording the motion for refusal quipped 'that's another one that will go through on appeal'. 

3. The planning officers brought the case back to the next planning committee in September 2016 to clarify the objections. By this time, Elan homes had already filed their appeal. They re-wrote the objections to exclude agricultural land and pointed out that the objection on drainage could not be evidenced because Welsh Water and Natural Resources Wales didn't agree. One of the councillors at that committee who missed the July date asked if it was not enough reason to say that it was outside the settlement boundary - he was told that the reason couldn't then be changed.

4. The inspector commented on the 5-year housing supply and TAN1:

"The UDP is time expired and the Council cannot demonstrate a 5 year supply of housing land. In such cases Technical Advice Note 1: Joint Housing Land Availability Studies (TAN1) states that; ‘The need to increase supply should be given considerable weight when dealing with planning applications provided that the development would otherwise comply with the development plan and national planning policies’."

Guidance is needed from the Welsh minister responsible because there are inconsistencies in the interpretation of TAN1 by inspectors. According to the Minister, the UDP remains extant - and the policies remain. It is up to the decision-maker to decide whether other factors require greater consideration.

"As stated above the site lies outside the settlement boundary. Policy STR1(a) of the UDP states that new development should generally be located within existing settlement boundaries and Policy GEN3 exercises strict control over new housing in the countryside. The development proposed is not of a type permitted by Policy GEN3 but I agree with the Council that there are other material considerations which outweigh this conflict."

It's not clear what the evidence is of these 'other material considerations'. It appears that there is not any evidence of why it should not go ahead.

"The extent to which Flintshire is failing to meet its housing need is not expressed but the Council’s suggestion that the standard time limit for implementation be reduced from five to two years perhaps gives an indication."

Again, the minister needs to clarify the guidance to inspectors. According to Planning Policy Wales, if a local authority has no current plan, then they are considered not to have any housing supply and are no longer required to complete an annual housing supply report. The last report was in 2014 at which time Flintshire had a 3.7 year housing supply. This is all on record. The Council's suggestion that the development be brought forward within 2 years is a response to prevent developers 'land-banking' - the principle being, if the development is allowed to breach policy due to the shortage of houses, then the houses need to be built quickly. This is obvious and common sense. The inspector who approved the development in Rhos Road, Penyffordd afforded a similar requirement. This inspectors gives the impression of being unfamiliar with the wider context.

"It is argued by some that Higher Kinnerton has reached the 10% growth limit set by the UDP and that granting planning permission would be premature pending the production of the Council’s Local Development Plan (LDP). However, the indicative limit was based on evidence to support what is now a time expired UDP. Further, from what I have read the anticipated date for the adoption of the LDP is October 2019. In the absence of any imminent plan led solution to the lack of housing supply, I consider that the need to increase supply combined with the lack of harm and sustainable location outweighs the conflict with Policies STR1(a) and GEN3. " 

Kinnerton faces a huge number of prospective development sites under the LDP proposals and it is clear that a decision on any of them prior to the completion of the LDP process is indeed premature. Once again, clarity for the inspectors is needed on the meaning of this crucial term within Planning Policy Wales.

Finally, one of the worrying comments included in the inspectors report on Kinnerton, was this:

"The Council has produced a Developer Guidance Note which sets out the approach it will take to what it describes as speculative housing development proposals. Although approved by Flintshire’s Cabinet, I have seen nothing to indicate that this non statutory guidance was subject to consultation. It is not founded on the UDP, I have concerns regarding its fit with national policy5 and consequently I afford it limited weight."

 How the plan based approach is supposed to work

How the plan based approach is supposed to work

This is referring to a document produced by Flintshire and shared throughout the planning community in Wales as a direct response to the challenges being faced by planners and communities in dealing with developments which seek to use TAN1 as a means to access prime land outside of the Plan process. It is a good, well thought out and well-intentioned attempt to ensure that developments are suitable for the communities and place where they are proposed. You can read the guidance here. It is very distressing for the government inspector to demonstrate so little understanding of the issues at stake and the challenges being faced in the absence of a Local Development Plan and the loophole that is TAN1. This is the full inspectors report.

 How the plan based system is actually working

How the plan based system is actually working

What next for Pen-y-ffordd?

Lack of Harm is key. Higher Kinnerton has not had growth at the scale or rate of Pen-y-ffordd. The reason we went to the trouble of preparing a village Questionnaire was to evidence 'harm' and to demonstrate why Pen-y-ffordd is not a sustainable location. We have submitted a 66 page document evidencing the 36 'reasons for refusal'. This has been sent to the Welsh minister, our representatives in the Welsh Assembly and Westminster, to the CEO of Flintshire, the head of planning, the officers involved in the Redrow application and everyone on the planning committee - you can read the document here.

Crucially, we need the Flintshire planning officers to recommend refusal. In Kinnerton (and on Rhos Road and Mynydd Isa etc.), they recommended approval and the inspector followed their lead. We believe that their stance is critical. 

At the moment, the Planning Officers have sent to Redrow a list of issues which need to be addressed including increasing the number of affordable houses (from 19 to 54), providing drainage evidence, newt migration plans, emergency services response, pedestrian access to Hazel Drive, highway drainage plan, landscape and visual impact assessment changes and agreed contributions to schools and for open space.

The implication remains that if Redrow comply with all of the requests, then the re-submitted plan will be recommended for approval by Flintshire County Council. Our contention is that the 'Principle of Development' remains the same regardless of these changes and that FCC, having received the detailed sustainability and harm evidence from Pen-y-ffordd residents, should be advising Redrow that they will be recommending refusal.

The same should be true for both of the pre-application developments on Rhos Road South and Hawarden Road.

The greatest need right now is for the Welsh Assembly to review Planning Policy Wales, TAN 1 - recognise how it is not working and issue guidance to developers, planners and inspectors on how to bring the housing the country needs, in the right locations, following the correct process.