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Fit For Purpose?

Fit For Purpose?We take a look at a currently hot topic amongst those interested in planning matters at Fylde - the issue of the five year supply, and how to calculate it.

But it's not so much about arithmetic as it is about logic, and, perhaps, deception.

It is a topic that's generated lots of reader traffic in our email box over the last couple of weeks.

SYNOPSIS

We introduce the topic by expressing concern that the broad picture emanating from Fylde planning at present is not one to inspire confidence. We can't tell whether the problem is officer generated or whether elected members are in the driving seat as they were when they wrote that 'Incredible Letter' to our MP.

Then we look at how things have become even worse, before outlining the recent history, and going back in Government time to John Prescott's Planning Moratorium representing the bust (as far as Fylde was concerned), before zooming forward to the Nick Boles/George Osborne post financial crash period seeking to create a housing boom to solve the debt problem - by people taking on more debt - in the post crash era.

Shifting our timescale we introduce the 5 year supply calculation before looking back at how progress in its implementation was audited in a government survey that introduced the terms Sedgefield and Liverpool. We then look at (probably) the most famous legal precedent that considers the 5 year supply topic and the issue of new planning guidance about how to do the calculation, before looking at a very recent 2016 House of Commons Briefing Paper on the matter.

Then we home-in on the current problem at Fylde and ask whether Fylde presently has a policy on this topic. We note Cllr Collins (eventually unsuccessful) attempt to introduce one, before looking at the DM Meeting of 15 June which is the epicentre of the present problem.

Next, we look at Fylde's Agenda for next Wednesday's Development Management Committee meeting and the Information Note it contains. This aims (rather one-sidedly) to 'clarify' the position which, in our view it does not achieve very successfully. So we contrast what councillors have been told in the Information Note with our own imaginary take on what might have gone on, looking at the likely aim, and how the Local Plan Examination might be affected by the decisions that were taken. We also look at how/why the present tangled web might have arisen, and we note what we think is a telling exchange from our audio recording of the June DM meeting, and how word of Fylde's problem began to spread, generating wider concerns.

Finally, we examine and comment on the Information Note's 'escape clauses' referring to them as No: 1; 2; the bit that's OK; and Nos:3; and 4., before wondering what might happen at the meeting, and concluding with a suggestion that might just help to solve the problem if it is politically acceptable (which it may not be).

 INTRODUCTION

Whilst we know some of the individuals concerned with planning at Fylde to be good, capable officers, we're increasingly concerned that the broad picture emanating from that service is one that leads us to question whether it remains fit for purpose.

The tipping point for this concern is the matter of the 5 year supply of housing land, and the way Fylde has got itself into a knot over it.

Because of the secretive way the majority party councillors prefer to conduct their business, we can't properly apportion responsibility for this unsatisfactory state of affairs between the leading members of the Planning committee and the employed officers.

But time and again we have witnessed the Development Management Committee take decisions on planning applications and appeals which have then been abandoned or reversed when officers have exercised delegated powers that so undermined the Committee's decision as to render it impotent, or where the position set out by the Committee has been abandoned altogether by Fylde's officers - often at the 11th hour.

Because these changes take place outside the public meetings, it is usually not possible to see whether they come about at the behest of an individual officer, or whether they arise as a result of pressure applied to officers by senior politicians who disagree with the decision that the Committee took in the first place.

Equally, the process to install a local plan at Fylde has been a complete disaster in terms of the time it has taken so far, its escalating costs, and the administrative incompetence that saw it issued for consultation knowing it was not fit for release.

That incompetence, coupled with political intransigence, resulted in not one but two unprecedented 'Minority Reports' being published by more than 40% of the members of Fylde Council who publicly dissented and dissociated themselves from key aspects of its content.

It also saw an unprecedented 'Statement of Unsound Consultation' declared and published jointly by ten community groups with an interest in planning matters and representing public opinion from communities across the whole of Fylde.

 AN INCREDIBLE LETTER

And in what - until now - was probably the most ridiculous example of how not to do things, and how to damage your credibility in the process, we had the dubious spectacle of the former Leader of the Council and the former Planning Portfolio Holder as they wrote a literally incredible joint letter to our MP setting out a vastly different version of the five year housing supply figure for Fylde.

Their letter began "I am writing on behalf of the elected members at Fylde to outline a proposal for the five year housing supply figure at Fylde..."

It went on to propose a number that was slightly more than HALF the number that the Council had officially published only two months earlier.

Their new figure was irrespective (and apparently independent) of what Fylde Council Planning Officers had produced, and it appeared to exist because the two councillors were convinced that their proposal made better common sense than the numbers they derived from evidence and planning policy.

To be honest, we thought what they said was close to common sense as well, but the dichotomy of their having an official council position which (at that time) supported 341 houses a year and their alternative common sense position saying there should only be 195 opened the whole process to complete ridicule.

We published their letter and report at the time, and we said "If this new figure is right then we think the whole basis of the new draft Local Plan is wrong.

If their new figure is wrong, it's probably because there has been some very dodgy behaviour going on.

Either way, this is news of monumental importance to Fylde.

Readers can follow this link to see our article on this matter called 'Incredible Housing Numbers' - but from five principal arguments, the councillors' report concluded that the five year housing supply figure for Fylde should be 1,170 when the local plan at that time said Fylde's 5 year supply needed to be 2,506 dwellings a year.

It is currently (as at March 2016)  3,181 dwellings.

 BUT THINGS HAVE BECOME WORSE

But now, the lunacy that is Planning in Fylde has ascended from the realms of ridicule to become a laughing stock.

And it's all because of this five year housing supply.

Readers will know we've absolutely no time for this form of planning alchemy that the Government uses to confound councils into achieving its objective of getting more and more houses built so it can drag ever more people deeper into a malleable state of debt-subservient compliance that masquerades as economic growth, but which in reality is nothing more than an illusion hiding an enormous (and eventually unsustainable) debt fuelled housing bubble.

But that said, it is (currently) the game that councils have to play when Government plays its tune.

However

In its own version of a 'game of two halves' Fylde is now attempting to play the game in two different directions at the same time.

There are two equally valid approaches to calculating the 'five year supply' and in Fylde's case, each produces a significantly different result.

The latest edict from Fylde's planners appears to say they should use one as a policy and the other as their practice.

Yes really!

It is a complete nonsense of course.

And we think it's arisen because they have foolishly engineered themselves into this untenable position with their planning knickers soundly twisted around their ankles.

Because there is such a lack of transparency in the decision taking at Fylde, we can't tell is whether it's the officers that have caused this problem themselves, or whether they were trying to appease an overbearing political will by hiding the foolishness they had been commanded to apply in plain sight in a tangled web of unnecessarily complicated and deceptive phrasing buried in the text of a committee report in the hope that no-one would spot what was going on (that's our favourite), or whether the officers had done the right thing, but have since been hauled over the coals for it and are now being required to backtrack and try to extricate themselves from the disaster that arose when Councillors Peter Collins and Liz Oades saw what was going on and exposed it.

(We say that's our favourite probability chiefly based an a comment made to us by someone who would know, who told us Cllr Fiddler had told his colleagues that if the Council chose to adopt the Liverpool Approach he would resign as Chairman of the Planning Committee).

 RECENT HISTORY

The current dichotomy on the five year supply began to appear in public shortly after the Warton Planning Inquiry into two planning appeals at opposite ends of the village. We devoted half an article to that matter, and to report another Fylde planning application at Dowbridge where Cllr Mrs Oades tried to raise the matter of the five year supply at a Development Management Committee meeting only to have the Chairman refuse to allow her to speak on it.

We understand his behaviour in refusing to let what to us was a clearly a material consideration be debated in the Committee might now be under consideration by those charged with maintaining proper governance at Fylde.

In the concluding section of that article we gave our own analysis of the situation that was causing the problem.

 GOING BACK IN TIME: PRESCOTT'S PLAN

We now offer a rough and dirty explanation of how we got here.

Fylde's housing provision is what's known as 'demand led'

It's not actually based on 'need' because Fylde's demographics show a decline in the resident population.

To match births and deaths, we would *need* to demolish about 60 houses a year because more people are dying in Fylde than are being born.

That situation is modified to a moderate extent by family fragmentation - chiefly because of divorce and separation (when couples divorce or separate they need two separate dwellings where previously they shared one).

But the overwhelming driver for housebuilding in Fylde is the desire to move to Fylde from elsewhere (typically, though not exclusively, Manchester and east Lancashire).

The extent to which this 'demand' (rather than 'need') is to be met is the real driver that should cause local politicians to decide where the right balance exists between meeting that desire and damaging the countryside and farmland by building additional houses to meet it.

But Government simply can't avoid sticking its fingers into the housing pie in Fylde (as elsewhere).

First, around 2002, the Government of the day introduced a new scheme called the 'Housing Market Renewal Initiative' (also known as the Pathfinder scheme). The key aim in the north, was to divert all attention on housebuilding into the inner city areas of Manchester and Liverpool (and some of East Lancashire).

John Prescott wanted to make developers focus their activities in deprived areas, and to do so, Government instructed Fylde (and some other councils), to put a moratorium on all new developments in their areas (except for projects that were already in the pipeline), and for several years, hardly any houses were built in Fylde.

The aim was to direct all the grant money and the housebuilding efforts of developers into the most deprived areas. The collateral damage (if such it can be called) was a boom in house prices in Fylde, making them less affordable, and lengthening the queues of people wanting to move here or, for existing residents who were divorcing or separating, to get their own place.

The controversial scheme ended in 2010 four years earlier than planned. We don't have an actual date for the ending of the housebuilding moratorium in Fylde, but it would probably be around this time, and it contributed at least 8 years worth of pent-up demand to Fylde's housing market.

 THE POST FINANCIAL CRASH PERIOD

We now fast forward to the present Government - whose chosen path to deal with the economic crisis of 2008 (which we plan to look at in a future article) included a massive increase in housebuilding.

The Anti-Planning Minister at that time was Nick Boles MP, (and he was a planning disaster on legs).

Together with the economically incompetent Chancellor George Osborne MP he delighted in the introduction of the plan that councils should have to demonstrate that they had a five years supply of land on which planning permissions for housing had been granted and, crucially, which had a real prospect of being built within the next five years.

Draconian measures were imposed on Councils that could not demonstrate this 'five year supply'

If you were a council that could not demonstrate that you had a five year supply of deliverable planning permissions, the ONLY real reason that you could use to refuse a planning permission was if you could show it would cause "significant and demonstrable harm".

This 'ruled out' many of the reasons councils had historically used to refused permissions in the past. 'Ordinary harm' was no longer enough of a reason to refuse, and if you did refuse on weak grounds, the developers could (and did) appeal to Government who overrode the local decision.

The Government's approach to this matter caused two separate problems. Firstly, if you think about it (and as we have heard Fylde's chief planning officer say) it put developers in charge of planning in Fylde. That's because to be counted within the Five Year Supply the houses had not only to have planning permission, they had to be 'deliverable' within the five year period, and the decision as to when houses would actually be built rests with the developer.

If they get a permission for even 1,000 houses but then turn around and say they will not build them within 5 years, that 1,000 houses cannot be counted within Fylde's 5 Year Supply.

So, not unexpectedly, developers have paper planning permissions for many thousands of houses in Fylde, and until recently Fylde has not been able to say they have a five year housing supply.

But the Government had two other tricks up its sleeve as well.

Firstly, they required councils to take account of what's known as the 'objectively assessed need.'

If it were true need that was being measured it would be fine, but either Fylde misunderstands it, or the Government's definition includes 'demand' within 'need'

The result is that at least some of the pent-up historic demand left over from the previous Government's housebuilding moratorium in Fylde now has to be 'accommodated' in the equation to calculate the five year supply.

And even worse, the Government rules that if you have a 'backlog' like this (technically an 'undersupply') they also impose an additional 'buffer' of additional homes (for which you can read penalty) amounting to 20% of the annual housing requirement.

Now, when you have an artificially inflated need, and an artificially inflated penalty, and artificially deflated building output as developers landbank planning permissions that vastly increase their worth and borrowing power (at least on paper), a Council has to find a way to 'redress' or recover the theoretical shortfall within the local plan that you publish.

Readers will understand why we refer to it as alchemy.

It is a process that turns base land into gold.

 THE FIVE YEAR SUPPLY CALCULATION IN OUTLINE

And this is where the five year calculation bit comes in.

Some councils, (notably one at Liverpool) said they would recover the shortfall over the life of the local plan - so if the plan lasts for 20 years, you would divide the shortfall by 20 and add that to your current 'objectively assessed need' giving an adjusted annual figure of housing need.

The Government's logic behind this idea is almost as disingenuous as the 'seasonally adjusted' employment figures of that name which assumed such notoriety some years ago

The other main approach is to recover the 'shortfall' more quickly (as a council called Sedgefield did) and to spread the recovery over the first five years of the plan. In this case you'd divide the shortfall by 5 and build a lot more houses in the first 5 years of your 20 year (or whatever) plan.

These two methods became known in local government speak as the Liverpool and Sedgefield methods.

Now, with apologies to quick and dirty lovers, we have to get a bit more complicated to understand how this came about.

 AUDITING THE IMPACT: SEDGEFIELD AND LIVERPOOL

In 2009, the Government commissioned a survey of 55 randomly sampled councils and published a report called "Land Supply Assessment Checks"

It had been commissioned by the Communities and Local Government Department to check the accuracy and quality of the figures that councils were sending in.

Their Returns for 2007–2012 had showed that 90 per cent of councils said they had a five-year deliverable land supply for housing, and the Government wanted to see how each of them was managing to do this.

As a by-product of this audit check, the Government also published what it thought to be good practice as it came across it during the audit. A key quotation about this process says:

"The Department for Communities and Local Government research document, Land Supply Assessment Checks, May 2009 uses case studies from Liverpool and Sedgefield about how these authorities calculated housing figures in their [now abolished] regional spatial strategies. In particular it highlights Liverpool and Sedgefield as being "good examples" for calculating historic undersupply of housing in a "clear and transparent manner".

But the Land Supply document was not guidance - or even advice - on whether to use the either the Liverpool or Sedgefield (or any other) method to calculate under-supply. In the report's conclusion - under the heading "Suggested Good Practice" the only mention of dealing with under-supply says the 5 year assessment should:

".....provide a clear statement of the calculation of the five-year requirement - setting out which development plan is relied on, the relationship to the adopted plan and later published plans, and how historic under/over supply, (including treatment of forecast losses of stock) is treated."

So what was being recommended as good practice was actually not one method over another, but the clear and transparent process used by BOTH of them.

In the individual text for each of the 55 Authorities surveyed, neither Sedgefield nor Liverpool was highlighted as being better or worse than the other in respect of their under-supply calculation. The wording for each says:

"Sedgefield Good practice elements include - Clarity in setting out five-year requirement, associated calculations, and how this is being met. A clear schedule of sites (working from a clear database), which is included in the report, and site-by-site analysis based on the three elements of deliverability. Also contacts developers for information on both sites with planning permission and allocations. Substantial contact with the House Builders Federation and other land owners."

"Liverpool Good practice elements include - readily available and clearly laid out report which is publicly available and deals with all elements of the assessment in one place. Clarity in setting out five-year requirement and how this is being met, including issues around demolitions. Clear schedule of sites included in the report (noting that the schedule only makes reference to larger sites with planning permission)."

So having been offered two examples of good practice by the Government, Councils began to adopt their way of doing things, and this is how the Liverpool and Sedgefield methods rose to prominence.

 A LEGAL PRECEDENT AND NEW PLANNING GUIDANCE

A more recent development came in the High Court in London, when a firm called Bloor Homes mounted a legal challenge to a decision.

In a landmark Legal Judgement (Case No: CO/2334/2013) involving Bloor Homes / Secretary of State for Communities and Local Government / Hinckley and Bosworth Borough Council, in a case about development at Groby in Leicestershire, the judgement goes into more detail than any of our readers would wish to shake a stick at. Those with a life to spare might want to download it for as long as this link works.

Curiously, the date of the hearing of this case (Dec 2013) and the date of the judgement (19 March 2014) appear to span the date of the revision of the Government's web-based Planning Practice Guidance on this matter (which seems to be 6 March 2014), and we can't help wondering if the Government - who had been party to the legal case - had revised its web-based guidance to minimise the impact the impending judgement would have when it realised what the likely outcome would be.

Either way, in the event, on this particular matter, the Judge said:

"Decision-making on applications

Every planning application must be decided in accordance with the development plan unless material considerations indicate otherwise (Planning and Compulsory Purchase Act 2004, s38(6)).

The National Planning Policy Framework and PPG are material considerations. Both set out government policy relating to the supply of housing land and, in particular, the need for each LPA to have a five year supply of housing land, together with the consequences (which are that policies for the supply of housing will be deemed to be out of date) if they do not. In practical terms, if an LPA does not have a deliverable five-year supply of housing land, any application for housing must be accepted, even if the site is not allocated for housing in the local plan, unless granting permission would cause significant and demonstrable harm.

The existence or otherwise of a five-year supply is therefore crucial to an LPA's ability to positively plan the location of housing in its area.

The PPG's endorsement of the Sedgefield approach is a material consideration and must be taken into account by an LPA in making a decision on a planning application which involves an assessment of housing supply against the five-year target. However, the LPA does not have to accept the Sedgefield methodology, and could choose to use the Liverpool approach instead.

However, the use by an LPA of one or other of the methods does not settle the question. If, following a refusal of planning permission an application is the subject of an appeal, the decision will be made by an inspector or the secretary of state. An inspector or the secretary of state is overwhelmingly more likely to use the Sedgefield approach, particularly given the guidance in PPG quoted above. Adoption by an LPA of the Liverpool method, without compelling evidence to rebut the PPG's presumption in favour of Sedgefield, would be likely to result in refusals of planning permission being overturned on appeal."

Whilst we think the end of this last paragraph over-eggs the pudding a bit, it is essentially correct. It comes back to the fact that in law there is no presumption in favour of either. Both methods are equally valid provided the circumstances of the Council and the application merit the use of the one that the Council has decided to adopt for any particular application. But as far as Planning Inspectors and the Government are concerned, it's true that the use of Sedgefield will have a lot of weight with Inspectors, and a Council that wants to use a refusal reason that is wider than that of 'significant and demonstrable harm' will have to show a proper justification for it.

 A RECENT COMMONS BRIEFING PAPER

Another key and even more recent document is a House of Commons Briefing Paper published in May 2106.

After mentioning the DCLG paper 'Land Supply Assessment Checks' it notes an article from a specialist private sector publication called 'Planning' which claims that the Sedgefield method is currently used most often by Planning Inspectors at appeal, then goes on to say

The PPG now gives the following guidance on how to deal with historic under-supply of housing:

How should local planning authorities deal with past under-supply?

The approach to identifying a record of persistent under delivery of housing involves questions of judgment for the decision maker in order to determine whether or not a particular degree of under delivery of housing triggers the requirement to bring forward an additional supply of housing.

The factors behind persistent under delivery may vary from place to place and, therefore, there can be no universally applicable test or definition of the term. It is legitimate to consider a range of issues, such as the effect of imposed housing moratoriums and the delivery rate before and after any such moratoriums.

The assessment of a local delivery record is likely to be more robust if a longer term view is taken, since this is likely to take account of the peaks and troughs of the housing market cycle.

Local planning authorities should aim to deal with any undersupply within the first 5 years of the plan period where possible. Where this cannot be met in the first 5 years, local planning authorities will need to work with neighbouring authorities under the ‘Duty to Cooperate’.'

In our view, all of this adds weight to the argument that there is NO formally approved method to calculate and ameliorate the shortfall, and decisions to date say it all depends on the historic and present circumstances of the Council at the time, and the individual circumstances of each planning application.

The most recent (31 March 2016) official published calculation of its 5 year housing supply calculation (before the Development Management Committee meeting of 15th June 2016) showed Fylde had a 4.8 year supply of housing land. This calculation had ameliorated the recovery of the backlog / shortfall over the first five years of the plan period (in effect, the so called 'Sedgefield' method)

But the decision of the DM Committee 15th June Committee has changed that approach  - because at that meeting, the Council has resolved to resolved to recover the shortfall over the lifetime of the plan. (the so called 'Liverpool' method)

There is now a huge internal row going on about whether they did make that change,  and if they did, to what aspects of the planning service it should apply.

 THE GENESIS OF THE CURRENT PROBLEM AT FYLDE

Our readers are invited to follow us on a journey through to the latest situation at Fylde.

Following the heated and difficult 27th July Development Management Committee which we reported under the heading of 'The Five Year Supply Issue At Dowbridge' we understand there has been a lot of questions, arguments and would-be clarifications flying around Fylde's email system (and the email systems of others we understand).

Essentially that's because of an enormous confusion that has been created about what constitutes Fylde's present policy on how to calculate the five year supply.

To help understanding, we have updated the conclusions from our own analysis of the matter that were set out in our article 'Warton Inquiry and the 5 Year Supply Issue.'

 DOES FYLDE HAVE A 5 YEAR POLICY?

Historically, Fylde has routinely amended the methodology it uses to calculate its 5 year housing supply over time.

In the latter years of the 'Regional Spatial Strategy' Fylde used the 'Liverpool' method of calculation.

And in four appeals relating to sites at Wrea Green that were determined alongside one another, an Inspector supported Fylde's use of the 'Liverpool' method over the 'Sedgefield' one (which the developer had argued should have been used).

In each of the four Wrea Green appeals, the Planning inspector's report said:

"The Council's revised position adopts the approach that the housing shortfall since 2003 has been rolled forward and evenly distributed over the period to 2021 (i.e the end of the RSS period). Site promoters argue that the NPPG requires the shortfall should be made up in the first five years of the plan period and not spread out over the life of the plan. However I am mindful that some of the backlog may have arisen as a result of an earlier moratorium on housing consequent upon excess provision in relation to the former Lancashire Structure Plan, and that the effects of the severe downturn in housebuilding activity after 2008 has also contributed to underdelivery. I therefore consider the Council's approach to be reasonable in this respect."

So here was one Planning Inspector who thought Fylde was right to use the Liverpool method of calculation - chiefly because it was addressing a special circumstance - namely the earlier moratorium imposed by John Prescott.

But in other instances we have found examples of Fylde using the first five years calculation as was advocated by Sedgefield.

But in 2014 (perhaps in order to speed up its achievement of a 5 year supply?) Fylde unofficially adopted the 'Sedgefield' method.

We couldn't find a minute authorising either of these decisions.

That's not to say there isn't one, just that we didn't find it. But what we did find was a reference to the methodology having been 'agreed' [sic] by Fylde’s SHLAA Steering Group.

If that is its basis, then neither method has any formal validity whatsoever at Fylde. The Steering Group possessed no decision-taking powers. It could not take such a decision.

Cllr Fiddler thinks the Council adopted the Sedgefield method, but we think he is wrong.

 CLLR COLLINS TRIES TO INTRODUCE ONE

Knowing that it would help the Council to achieve a 5 year supply more quickly, Cllr Peter Collins gave notice of a motion to Fylde's Full Council meeting on 28 Feb 2016.

The minute of that meeting say: "8. Notice of Motion - Five Year Housing Supply. Following notice given under rule 12 of the Council Procedure Rules, the following Motion was proposed by Councillor Peter Collins. "That, with immediate effect, this Council adopts the `Liverpool´ approach in applying the shortfall in delivery of the Objectively Assessed Need (OAN) identified in the Housing Requirement Paper (2015) to the calculation of Fylde´s five year housing supply position, i.e. the shortfall would be applied over the plan period and NOT over the first five years of the plan (the `Sedgefield´ approach)."

The motion was seconded by Councillor Linda Nulty.

During the course of the debate, Councillor Fiddler proposed the following amendment: "The council defers the motion to allow for a full report on this matter to be considered by the Development Management Committee prior to 31 March 2016, with a report on this matter coming back to the next available Council meeting on 11 April 2016."

And that resolution was carried

It went to the Development Management Committee on 9 March 2016 where "It was RESOLVED to recommend to Full Council to continue using the "Sedgefield approach" in the calculation of the 5 year housing land supply as it most closely reflects current Government guidance as set out in the National Planning Policy Framework and Planning Practice Guidance having regard to the circumstances appertaining to Fylde borough."

That decision was confirmed at the following Development Management Committee of 16 March 2016

The matter was then placed on the Council Agenda of 11 April 2016 with the recommendation to approve the Sedgefield approach, and where (there is more preamble but we have shortened it here)........ "Councillor Fiddler concluded by stating that as the matter had been discussed at length at the Development Management committee, he proposed that the council proceed to the next business."

Councillor Richard Redcliffe seconded that proposal.

A recorded vote was taken and 27 Conservatives and one Ratepayer present at the meeting voted for Cllr Fiddler's guillotine' motion not to debate the item, and 11 Independent and one Liberal democrat voted to against his motion. 3 Councillors (two Conservatives and one Independent), abstained.

So the guillotine motion was agreed by a majority, and the Council meeting did not take a decision on Cllr Peter Collins's proposition at all, they simply ignored it and went on to the next item of business.

But because the 'next business' guillotine device had been used, the Council's rules say that the motion originally proposed by Councillor Collins at the 8 February 2016 Council meeting, was 'deemed to have been lost'.

 DM 15 JUNE 2016 THE HUB OF THE PROBLEM

We now come forward to the Development Management Committee meeting of 15 June 2016.

This is where the trouble lies, and it's why we think officers were trying to 'disguise' what was really going on from the Committee.

The relevant minute of that meeting says "2. Approve the policies in the housing chapter (Chapter 10: Provision of Homes in Fylde) of the Publication version of the Local Plan for immediate use as ‘Interim Housing Policies’ for use by the Development Management Committee and for decisions determined under Delegated Authority by the Head of Planning."

That's a minute that is very clear.

It says the policies are 'for immediate use ..... by the Development Management Committee ...and for decisions determined under Delegated Authority by the Head of Planning"

It doesn't get more clear.

But the tricky part underlies it - because when you look up those policies in the latest 'Publication Version' of the Local Plan, Paragraph 10:19 sets out the housing trajectory before saying "The shortfall of 802 homes has been spread over the remainder of the plan period and added onto the annual requirement figure of 370 homes resulting in an annual requirement figure of 420 homes from 2016-2032."

Spreading the shortfall over the whole Plan period *IS* the Liverpool method of calculating the 5 year supply, and the Minute says this is the policy to be used in the future.

Under Fylde's current administrative arrangements, once that minute was approved by the following Development Management Committee (which took place on 29th June 2016), that decision replaced anything which might have existed previously, and it has the full authority of the Council.

It is as though the Council itself had taken that decision.

In our earlier article we said we thought it would take a meeting of the Full Council to make any change to what has been decided.

 NEXT WEDNESDAY'S MEETING

But - perhaps unsurprisingly - given the legal and administrative quagmire in which Fylde now finds itself wallowing - the DM committee of next Wednesday (7 September 2016) is being given some further advice on the matter.

That advice is marked on the Agenda as an 'Information Item' so it is not officially for debate, and we would not be surprised to see the Chairman to try to turn it into an edict or decree upon which there is no discussion. He would be both practically and ethically wrong to do so if he did.

If he does not refuse to allow debate on it we also expect there to be some strong debate of this matter. It is both fundamental and crucial to Fylde's future planning decisions.

Our concern in this matter was not lessened by the realisation that the item is the last one on a 'Planning Application' agenda that starts at 10am and will most likely run well into the afternoon, so there is no prospect of being able to tell what time the 'Information Item' will be introduced.

We have said before that it is not unknown for officers to place items last on an agenda when they are difficult or controversial in nature because experience of attending council meetings illustrates that tired councillors are often more unwilling to get involved in the debate when they want to get home, and a late agenda item may get an easier passage than it might otherwise do. To be fair, Fylde's current administrative arrangements do place all supposed 'Information Items' at the end of agenda so perhaps nothing specific can be drawn from its position in this instance.

Judging by the emails we've been copied into by some of our readers already, we would have expected a sizeable public turnout at this meeting, but the uncertainty over its timing at the end of the meeting might make it difficult from some to attend.

So what have the officers said?

 OUR OWN TAKE ON THE INFORMATION NOTE

Readers who want the full detail can follow this link to download a copy of the Agenda Item and report, but our own - perhaps somewhat fanciful - take on what might have happened is below.

 WHAT MIGHT BE THE AIM?

We think it begins with a political desire to maximise income from the New Homes Bonus by being able to hide within the Government's skirts and blaming (currently) 'Mother Theresa' because if the Committee doesn't approve the planning applications (which, will also - by the way - deliver loads of dosh to Fylde as well), then the Government will only grant them on appeal, so resistance is futile and it's all the Government's fault, not ours.

That political logic has been extended to an extreme risk aversion approach that has had Fylde's officers pull the rug from under decisions the Committee had taken in order not to risk having to lose some New Homes Bonus or pay costs if an appeal decision goes against Fylde.

But it may be a reasonably easy (if unsatisfactory to those adversely affected by the granting of permissions) way to maintain and justify as a strategy if you've decided you *want to* use the Sedgefield method and calculate your shortfall over the first 5 years. (It's an easy and safe way out because the only reason you can use is 'significant and demonstrable harm' - and that's hard to prove, hence you can more easily justify not doing as much to argue against a proposal).

However we think that neither a desire to please Planning Inspectors, nor a fear of costs should be a matter that has any greater substance in planning terms than does a desire not to have your view spoiled if you are a resident overlooking the proposal.

 BUT WHAT ABOUT THE LOCAL PLAN EXAMINATION ?

But what happens when you come to the process that will examine Fylde's New Local Plan if you can't show that you meet the requirement to have a five year supply of housing land?

Which examiner of Local Plans is even going to CONSIDER examining a plan that can't demonstrate this as a basic concept.

The answer is none.

It's a non-starter - because using the Sedgefield method, Fylde has a 4.8 year supply.

It's examination would fail before it's begun.

We have a problem, Houston.

So what happens next?

 DEALING WITH THE PROBLEM

Well, we could try to hide the change we're making to using the Liverpool method by secreting it in the preamble to the actual policy within the 263 pages of the latest draft of the Local Plan. No one will ever find it there and realise what it is. And we can then put a recommendation on an agenda that simply says we approve the new local plan policies for immediate effect. The agenda item doesn't mention Liverpool or even refer to housing numbers.

'Simple' as our Meercat friends might say.

So the theory is that we can send the plan off for examination showing a 6 or 6.2 or 6.3 year supply and the examiner will agree to accept it for examination, but we won't tell anyone, and we'll carry on using the Sedgefield method of 4.8 years supply for actual, planning applications, and we can still blame the government for planning approvals.

If that *had* been the logic, it was doomed to fail.

The intrepid Cllr Peter Collins isn't one to let things slip past him.

 A TELLING EXCHANGE

It might also have been the reason for an exchange between the Development Management Committee Chairman Cllr Trevor Fiddler and Cllr Peter Collins at the meeting of 15th June 2016 where Cllr Collins (who is nobody's fool and saw straight into what was going on) had said "I'm just looking at page 121 and it discusses the shortfall and it says the shortfall will be addressed over the remainder of the plan period. The shortfall is 802 and over the plan period that's 50 per annum, so that leaves a new requirement figure of 422 per year over the remainder of the plan period.

But, we're supposed to be addressing the shortfall over the next five years of the plan period, so really when you look at trajectories, the new requirement should be 370, plus 160 (which is 802 divided by 5), so for the years 16/17 through to 20/21 the annual requirement should be 830 on the trajectory if that's the way we're going to do it. But that's not what it says on page 121.

After a short (sort of) explanation by the planning officer, Cllr Fiddler told Cllr Collins "It could develop into a simple (?) concentrating on the merits of the Sedgefield and Liverpool methodology. We've rehearsed that. I think you've been very, shrewd, in picking that up out of the enormous amounts of paperwork before you - that the Liverpool method is being used in terms of the Local Plan. But in terms of dealing with planning applications as Mark has emphasized on numerous occasions it's the Sedgefield way that every indication points to in the sense that there is a persistent under supply, persistent under delivery, so I don't..., we've gone through all that argument. I don't think this is the time and place to continue that and progress that debate."

So to us, it appeared evident that Cllr Fiddler was 'in' on the sleight of hand being deployed, and his congratulations to Cllr Collins for spotting it suggested to us that he hadn't expected anyone else to see it.

If that was what had happened, the cat had come well and truly out of the bag, and it's no wonder Cllr Fiddler wasn't for having another debate on it when Cllr Oades wanted to introduce the 5 year supply issue in the debate on the Dowbridge application.

 WORD OF THE PROBLEM SPREADS

By now, counterbalance was reporting what had gone on, and from others who had attended the meeting,  word of this two-faced approach to planning decisions started to leak out into the wild. A hiatus arose, and we suspect no-one at Fylde had a clue how to resolve it properly.

We heard various measures had been tried to extricate them from the mess - but none would wash in our view.

Some of these extricating techniques have found their way into the Information Item on next Wednesday's agenda as what we're referring to (for obvious reasons) as 'escape clauses'

 ATTEMPTS TO ESCAPE THE PROBLEM 1

The first attempt at an escape clause is to imply there was a decision to use the Sedgefield method taken at the Development Management Committee at its meeting on 9 March 2016. The wording of the information item actually says "...This endorsement was in the context of a request by full council to consider the merits of the two approaches..."

There was no decision taken to use the Sedgefield method.

The resolution was "....to recommend to Full Council to continue using the “Sedgefield approach.....'

But that resolution was never put to the Council to consider, and as we have already seen, that was because the Cllr Fiddler employed a procedural device at Council to curtail any debate on the item. He was successful, and this avoided any decision being taken - as we have previously shown.

We have also been through the minutes of many DM Committees quite carefully, and we can find no instance of either the Council or a Committee having authorised the use of ANY of the two methods of calculation.

Over time, Fylde has used whichever method has suited it. Sometimes over 5 years, sometimes over the whole plan period. We could find no adoption of a policy to use one over the other. We did find evidence of both methods being used at Fylde in the past.

And even if there HAD been a decision to use Sedgefield method at the DM committee of 9th March, it was superseded by the later decision of the same Committee taken on 15th June, so it would no longer have applied anyway.

 ATTEMPTS TO ESCAPE THE PROBLEM 2

The second attempt to find an escape route is to say that the reference to addressing the shortfall over the plan period in Chapter 10 of the new draft plan, is not part of the actual policy wording. It is only in the supporting text.

The implication we are invited to draw from this deception is that it has no force.

The relevant policy is H1, and the argument being made is that because this POLICY H1 does not specifically refer to a methodology of dealing with the shortfall at all, then the decision of 15th June has no force, and the recommendation of 9 March is unaffected.

This is simply splitting hairs with words, and it is an argument that is not worthy of a professional officer.

Firstly, it is right that the recommendation of 9th March remains unaffected. That's because it has no force. It is not, and never can be construed as being a decision. It was a recommendation - which was, in the event, not even put to the Council to consider. End of.

Secondly, and more specifically, as the officer who wrote this biased piece of information knows full well, this Publication version of the Plan (and every Local Plan we've ever seen) says ( in this case at Page 14, and in bold typeface in the Plan).

"1.8 The Local Plan should be read as a whole and every policy and supporting justification should be considered equally together and a balanced judgement needs to be made when determining planning applications."

So the justification for the policy is to be read equally with the policy it supports. End of.

 THE BIT THAT'S OK

The part of the information item that is relevant is the part that says "When making its decision on a planning application, the committee must have regard to any material considerations, but the weight to be given to each material consideration is a matter for the committee. The recommendation of 9 March and the decision of 15 June are both capable of being material considerations in any planning application to which housing supply is relevant."

This is absolutely the case. Both situations are CAPABLE of being applied to decisions on planning applications.

 ATTEMPTS TO ESCAPE THE PROBLEM 3

But then the information note goes back into 'escape mode' by saying:

"However, the committee recommendation of 9 March, set out fully in the report to that meeting, is that decisions based on the Sedgefield approach are more likely to be upheld in the event of an appeal. While the publication version of the local plan aspires towards using the Liverpool approach it would be unsafe to do so until the local plan has been the subject of an Examination in Public and that approach has been accepted as being sound."

This is simply ludicrous.

It is simply ludicrous to have (either method) as a policy and also to ignore it.

It is equally ludicrous to try to use both concurrently. (It's equivalent to saying our policy is to have children's playgrounds no more than a mile apart so they are all within walking distance, but because they cost a lot we have another policy to build them five miles apart.) It is simply a ludicrous and untenable position.

It is also ludicrous because the decision taken by the Committee was not to 'aspire' to the Liverpool approach. The Council has only one approved policy and that is the one resolved and adopted at the 15th June meeting when the Publication version of the Plan was approved. It ameliorates the shortfall in provision over the life of the Plan and unless the Council subsequently decides otherwise, that IS what must happen.

Furthermore, the minuted decision on the uses to which that policy may be put is equally very clear. It says the policies are 'for immediate use ..... by the Development Management Committee ...and for decisions determined under Delegated Authority by the Head of Planning"

That is clearly about decisions on planning applications, not on the local plan policy.

It is also a ludicrous argument because if the application of policy defines that there is only a 4.8 year supply of housing land, then it must be equally clear that the Local Plan may not proceed to examination.

 ATTEMPTS TO ESCAPE THE PROBLEM 4

The information note concludes

'Accordingly, until greater weight can be afforded to the emerging Fylde Local Plan to 2032 the methodology preferred by Fylde Council is to address the shortfall over the immediate 5 year period in line with the "Sedgefield" approach as it is considered that this approach is more robust having regard to current circumstances. However, the Council will continue to review the approach taken having regard to local circumstances and best practice.'

This is a nonsense. An advice or Information note from officers cannot, and indeed MUST NOT BE ALLOWED TO override or overturn a properly constituted decision taken by a committee that had authority to take that decision delegated to it by the full Council.

Readers might now see why we said that the start that the broad picture emanating from the planning department is one that makes us doubt whether it remains fit for purpose.

 SO WHAT'S GOING TO HAPPEN

This is a mess.

There are few choices here. We may see the Chairman try to bluster and bully his way out, we may see a different decision proposed and taken.

What is clear to us is that there now exists a clear (an actually sensible) decision of the Council that it can now ameliorate the shortfall in its housing numbers over the lifetime of the plan, not over the first five years.

However, we think there is an enormous - and to us obvious - point being missed.

Just because Fylde has, in effect, adopted the 'Liverpool Method' to calculate the amelioration of the shortfall, THAT DOES NOT SAY IT MUST USE AND APPLY IT ON EVERY OCCASION.

Fylde can use the Liverpool system to calculate the needs but continue to determine individual decisions on a case by case basis.

The real issue here is not in the method of calculation adopted, the real issue is about the limits you are prepared to accept if you want to justify a refusal.

It is about constraining the scope of the reasons you might give for refusing an application.

We can see nothing to stop a council like Fylde ameliorating the shortfall over the life of its plan, but choosing to decide on a per application basis, (depending on the circumstances of the Council and the issues in the particular application) whether to voluntarily limit its decision-taking to those applications which WOULD meet the TEST of the Sedgefield method and cause 'significant and demonstrable harm' and which, in turn, would justify the refusal of ANY application

And to use the wider scope for refusal (that is afforded to Councils who can demonstrate a five year supply) on other applications with different circumstances - for example where the Committee feels it can be argued that a proper justification for refusal on less than 'significant and demonstrable harm' can be made.

That seems to us like an eminently sensible solution. Matters to be decided on a case by case basis.

It also avoids the foolishness of trying to play the game in both directions at the same time.

But what it will do, is expose those who take unpopular decisions by removing the encircling skirts of 'Mother Theresa' - within which they currently enjoy a somewhat protected existence.

And that may not prove to be universally popular.

Whether something like this is adopted, we will find out next week.

Dated:  2 September 2016

   

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