26 The Avenue, Claygate, Esher

by Ed Dade

Posted on March 15, 2022

The "Claygate" case confirms that planning decisions should be taken in accordance with the Development Plan - even where this conflicts with national policy.

This review of a planning appeal decision forms part of a series of 'micro-blog posts' - see Introduction to Planning Appeals Micro-blog Series for more information.

Key learning points:

  • The appeal case is concerned with the delivery of affordable housing on a small development site - and whether the requirements of a Written Ministerial Statement (WMS) and Planning Practice Guidance (PPG) trumps policies in a Local Plan.
  • The case illustrates that planning decisions should be taken in accordance with the Development Plan (unless material decisions indicate otherwise) and how there may be circumstances in which the requirements of a Development Plan may differ from national policy requirements.
  • In the Claygate case, the high need for affordable housing in the local area justified a planning obligation for affordable housing delivery - despite being contrary to the WMS and PPG.
  • The WMS has since been incorporated into the NPPF 2021, which now provides greater clarity on the circumstances in which developers can be required to contribute to the delivery of affordable housing.
  • This was a highly significant case which influenced multiple other appeal decisions, prior to the NPPF 2021 being published. However, it is unlikely that a new Local/Neighbourhood Plan policy could now include similar requirements for affordable housing, due to the strict thresholds set in the NPPF 2021.

Review of Inspector's Report

Appeal ref: 3146699 - 26 The Avenue, Claygate, Esher, Surrey KT10 0RY

NB. The decision pre-dates publication of the current NPPF 2021 - the decision was made in the context of the NPPF 2012.

The appeal decision considers whether a proposal for the construction of a single-storey dwelling makes adequate provision for affordable housing.

The relevant Local Plan was the Elmbridge Core Strategy 2011 (CS). The CS required that residential proposals comprising 1 to 4 dwellings provide a financial contribution towards affordable housing (equivalent to the cost of 20% of the gross number of dwellings). The contribution would be secured by a planning obligation, ring fenced and then spent on off-site delivery.

The CS explains that house prices in Elmbridge are significantly above regional and national averages, and that relying on on-site provision was failing to deliver a level of affordable housing that was proportionate to overall housing delivery.

The Inspector considered the CS's approach to be consistent with the NPPF 2012 (the relevant national policy at the time), which required local planning authorities to meet the full, objectively assessed needs for market and affordable housing.

At the time of the appeal, a material consideration of considerable importance and weight was the Written Ministerial Statement (WMS) of 28 November 2014. The WMS stated that ‘for sites of 10-units or less….affordable housing and tariff style contributions should not be sought’. The intention of the WMS was to ensure that financial contributions do not become a disproportionate burden for small scale developers and thus frustrate housing supply. The requirements of the WMS were translated into the government's Planning Practice Guidance (PPG).

As such, there was conflict between the national threshold relating to the provision of affordable housing set by the WMS and PPG, and the local thresholds set out in the CS.

The effect of the WMS is that it would normally be inappropriate to require any affordable housing below the thresholds stated.The Inspector's view was that, whilst there is a presumption that a policy such as a WMS should be followed, especially as it postdates the CS, it is also important to acknowledge that a policy that is relevant to the matter in hand should not be applied rigidly or exclusively when material considerations may indicate an exception may be necessary. The Inspector shared the view of the Council that it is for the decision taker to weigh any conflict between relevant policies in light of material considerations, including local circumstances.

The Council provided a statement updating the evidence in the CS and providing further justification for its approach. This statement explains that median house prices in the Borough are exceptionally high and are amongst some of the highest in the country. The evidence indicated that house prices in Elmbridge were rising higher than neighbouring authority areas and that it is the least affordable authority in England outside of London.

The Inspector agreed there is an acute problem with the affordability of housing in the Borough and therefore a pressing need for the Council to achieve its aim of delivering affordable homes. The Council's statement also identifed that a high number of planning permissions for housing fell below the 10 homes threshold set out in the WMS - and therefore under the WMS's rules would be exempt from contributing to affordbale housing delivery.

Without the overall contribution towards affordable housing delivery made by smaller sites, the Council would struggle to meet its target for the delivery of affordable housing. In past years, 90% of small sites had paid the total affordable housing contribution in full. There was therefore no evidence to sugges that the CS's requirement places an unreasonable or disproportionate burden on developers, such as schemes not coming forward or being rendered as unviable.

As a consequence the Inspector concluded that, whilst the WMS carries considerable weight, it did not outweigh the development plan in this instance given the acute and substantial need for affordable housing in the Borough and the importance of delivery through small sites towards this.

The Inspector concluded that the planning obligation for affordable housing was justified (in the context of Regulation 122(2) of the Community Infrastructure Regulations 2010), and that the proposal should be determined in line with the development plan.

The appeal decision pre-dates publication of the NPPF 2021. Whilst previously an 'important' appeal decision, referenced by multiple other Inspector's Reports, the case is likely of lesser significance today due to the greater clarity that current national policy provides on the issue of affordable housing delivery. Namely, paragraph 64 of the NPPF 2021 states:

"Provision of affordable housing should not be sought for residential developments that are not major developments, other than in designated rural areas (where policies may set out a lower threshold of 5 units or fewer)."

However, whilst the NPPF is a material consideration in planning decisions, it remains the case that planning law requires applications for planning permission be determined in accordance with the development plan - even in situations where the requirements of the development plan differ from those set by national policy.

Referring appeals

From my analysis of Inspector's Reports (since 2015), I have identified 29 appeal decisions which make reference to the appeal case. This includes the following cases (hyperlinked to Planning Inspectorate's case search):

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