Aylesbury Vale Area

Object

VALP Main Modifications

Representation ID: 3471

Received: 17/12/2019

Respondent: Wates Developments

Agent: Boyer Planning

Legally compliant? No

Sound? No

Representation Summary:

The proposal to modify VALP Policy D-BUC046, such that development on that site must achieve 'at least' 420 dwellings, is problematic. It introduces a vague definition and would also penalise an applicant if less than 420 dwellings were proposed.
Additionally, the reference to the current status of the Neighbourhood Plan is unnecessary to make Policy D-BUC046 sound. It is also irrational, as the wording of the policy (as proposed to be modified) will be rendered incorrect in future.

Change suggested by respondent:

See full text

Full text:

Representation on Behalf of Wates Developments Ltd., in Relation to Proposed Main
Modification 0084
Representation
On behalf of our client, Wates Developments Ltd ('Wates'), please find below our response to proposed Main Modification 084 ('MM084'). This concerns Local Plan Policy 'D-BUC046' and the proposed allocation of Land off Osier Way, Buckingham, which Wates is seeking to bring forward.
An application for outline planning permission (ref. 19/00148/AOP) was submitted on 15th January 2019, and is being currently being considered by the Council in its capacity as Local Planning Authority ('LPA'). The application seeks consent for up to 420 dwellings, together with supporting infrastructure.
Our client objects to the proposal to modify Vale of Aylesbury Local Plan ('VALP') Policy D-BUC046 in the manner envisaged at MM084. There are two issues of concern.
Firstly, the wording of the policy is proposed to be modified to read;
"Current neighbourhood plan status Neighbourhood plan, made in October 2015. The land has no notation but is outside the settlement boundary. The neighbourhood plan is in early stages of review." (Emphasis our own).
The proposal to describe the progress of the Neighbourhood Plan review is unnecessary to make Policy D-BUC046 sound. It is also not a rational statement, as the VALP sets out a spatial and
development strategy up to 2033. It is highly likely that the Buckingham Neighbourhood Development Plan will have been reviewed (at least once) by 2033. As such, the proposed wording will be rendered incorrect in future and risks becoming misleading as a consequence. Accordingly, this part of MM084 should be rejected and deleted.
Secondly, a further concern, is that the 'site-specific requirements' set out in Policy D-BUC046 are proposed to be modified such that the development (of Land off Osier Way) will be required to provide "at least" 420 dwellings, rather than "around" 420 dwellings, as was the case in the Proposed Submission VALP.
This proposed modification is not justified, because it creates ambiguity concerning the scale of appropriate development. For example, 'at least 420 dwellings' could mean 421 dwellings, or it could mean 600. Conversely, a proposal for 419 dwellings (i.e. less than 420) could be regarded as being contrary to Policy D-BUC046 and attract negative weight as a consequence. In these respects, the proposed modification undermines the clarity and effectiveness of the VALP.
It is suggested that the reference to 'at least' should be replaced with 'approximately' or reverted to 'around' (as previously envisaged), as the common understanding of these terms (in this context) would be taken to mean a figure in the order of 420 dwellings. This would allow for the applicant to respond to site specific considerations and provide an appropriate scheme, without the risk of
conflict with the Development Plan.
Separately, it is noted Main Modification MM010 proposes to describe the overall VALP housing requirement as "a total of at least 28,600..." (Emphasis our own). It is considered that making this change is sufficient to signal the Council's intention to exceed the overall housing requirement.
There is no need to apply the same terminology to site-specific policies within the VALP, as (for the reasons described) this could result in unintended consequences that may undermine effective delivery.

Yours sincerely
Mike Newton
Director

Representation to Modification MM115

Representation on Behalf of Wates Developments Ltd., in Relation to Proposed Main
Modification 115
Summary Representation
On behalf of our client, Wates Developments Ltd ('Wates'), please find below our response to proposed Main Modification 115 ('MM115'), which relates to Local Plan Policy H1 'Affordable Housing'. This response is supported by Counsel's Opinion, provided by Sasha White QC (attached at Appendix 1).
Wates is seeking to bring forward Land off Osier Way, Buckingham, which is proposed for allocation in the Vale of Aylesbury Local Plan ('VALP') at Policy D-BUC046. An application for outline planning permission (ref. 19/00148/AOP) was submitted on 15th January 2019, and is being currently being considered by the Council in its capacity as Local Planning Authority ('LPA'). The application seeks
consent for up to 420 dwellings, together with supporting infrastructure.
On the basis of Counsel's Opinion, our client objects to the proposal to modify VALP Policy H1 in the manner envisaged at MM115. The principal concern, is that MM115 would allow for the affordable housing requirement to be specified on the basis of policies in existing Neighbourhood Development Plans. This would be the case where these Plans were adopted ('made') prior to the adoption of the VALP. In many instances, this would result in a higher affordable housing requirement being applied, when compared to the 25% requirement that is otherwise specified by
Policy H1 and which is derived from the Local Plan evidence base.
MM115 therefore represents a very significant departure from the position presented by the Council during the Examination. It is alarming then, that this modification is put forward without any supporting justification that purports to explain why this proposal (which plainly contradicts the Local Plan evidence base and examination library), should be otherwise regarded as well reasoned, necessary and justified. Indeed, MM115 appears to have been proposed without any consideration
of the potential implications.
Accordingly, we maintain that MM115 is not a necessary response to the Inspector's Interim Findings, and it is neither positively prepared nor justified. The proposed modification is also likely to be ineffective, and would result in Policy H1 becoming inconsistent with national policy. The proposed modification, if adopted, would therefore render the Plan unsound. Accordingly, it is essential that the modification envisaged in MM115 is firstly, rejected and secondly, deleted.
Full Representation
Our client objects to proposed modification set out under MM115, which seeks to amend the wording of Policy H1 'Affordable Housing'. The proposed modification would result in the application of a requirement for residential developments, of 11 dwellings or more (or sites of 0.3 ha of more), to "provide a minimum of 25% affordable homes on site, except where a different requirement already applies in a neighbourhood plan which has been made before the VALP" (emphasis our own). It is considered that this change would result in the Plan failing all of the tests of soundness, as detailed at NPPF (2012) paragraph 182. For reference, at Appendix 2, a table is provided which lists the 19 made Neighbourhood Plans in the Vale of Aylesbury and identifies the specified affordable housing requirement / policy position for each.
Positively Prepared
To meet this test, a Local Plan must be based on a strategy that meets objectively assessed needs and infrastructure requirements. In seeking to achieve this, the VALP sets out objectives, a spatial strategy and an approach to meeting housing needs that addresses the circumstances of the district, taking account of the available evidence. The Plan's evidence base gives detailed consideration to
development viability, taking account of identified infrastructure requirements. It is on the basis of this evidence that the proposed District-wide 25% minimum affordable housing requirement was identified, as the appropriate level of requirement.
If a higher proportion of affordable housing is mandated within some parts of the district, then there can be no certainty that development will be viable, taking account of the most up-to-date evidence.
This means that identified housing and infrastructure needs may not be met. Indeed, by introducing a varied affordable housing tariff across the District, without any credible evidence to support this approach, MM115 could seriously compromise the spatial strategy. This would undermine the fundamental foundation on which the VALP was prepared.
Indeed, as is explained in detail at paragraphs 16 to 25 of Counsel's Opinion (appended), affordable housing policies in made Neighbourhood Plans (and specifically the BNDP) are regarded as out-of-date, because they rely on aspects of the evidence base that have been surpassed and overtaken.
Justified
The proposal to apply different affordable housing requirements across the district was neither tested, nor explored, through the examination. The Inspector's Interim Findings did not identify a requirement to consider this matter and an alteration to Policy H1 was not put forward, by the Council, as a 'proposed action' in the Discussion Documents and related correspondence with the Inspector. It is not clear why the Council now seeks to propose to modify the Plan, at this late stage,
in a manner which is inconsistent with the advice and direction the Inspector has provided throughout the course of the process.
In attempting to introduce this very significant modification at this late stage, the Council appears to be seeking to circumvent the opportunity for effective discussion, and consequent analysis, through Local Plan examination hearings. If the Council had envisaged that Policy H1 should be worded such that affordable housing requirements would defer to made Neighbourhood Plans, then this
"requirement" should have been fully explored through the relevant hearing sessions. In this context, it is inappropriate to seek to introduce this change, which has fundamental implications for housing delivery, through a Main Modifications consultation. It is a matter of grave concern that the Council has failed to provide any clear justification in support of the proposed modification, either within the evidence material in the Examination Library or the Main Modifications Core Documents List (November 2019). The reasoning behind the proposed
modification is therefore entirely obscure. Indeed, for a Main Modification of this significance to be proposed without any supporting justification or reasoned basis, infers that limited consideration has been given to consequences regarding the soundness of the VALP.
Following on from the above, it is also worthy of comment that the position now pursued by the Council, in relation to Policy H1, is inconsistent with the arguments and evidence relied upon during the Examination. For example, the Council's response to the Inspector's Question 79 (which concerns the affordable housing requirement and Policy H1 specifically) states;
"To be in accordance with government planning policy and guidance, and so meet a test of soundness, the council has no option but to apply the method it has used to assess the need for affordable housing. The percentage put forward in VALP represents an uplift though on the 21% that the HEDNA concludes is needed to meet affordable housing need to address the shortfall that would result from the threshold excluding developments of ten houses or less that is required by the government. The adjustment is required to ensure that the council is in accord with the NPPF's
requirement to ensure that the total amount of affordable housing required to meet the HEDNA forecast is met."
Additionally; "Prior to the production of VALP Neighbourhood Plans were produced in Aylesbury Vale on the basis of existing evidence which did not apply the new method of affordable housing need assessment set out above. As a result those plans could justify a higher level of affordable housing need. That evidence is now out of date though and the newer evidence must inform the new local plan using the prescribed method for assessment."
It is assumed that the Council continues to maintain that the HEDNA and viability evidence-base provides a robust basis for the VALP. It is also assumed that the Council believes that the VALP's approach to affordable housing (and the proposed 25% requirement) is based on an appropriate methodological approach. If these assumptions are correct, then it must inevitably follow that MM115 deviates from both the findings of the evidence base and the prescribed methodology, both of which the Council relies upon as underpinning the Plan as a whole. Instead, as is noted at paragraphs 16 to 25 of Counsel's Opinion, MM115 would result on a reliance on earlier viability assessments, which have been superseded and which are out-of-date.
The policies proposed in a Local Plan can only be regarded as 'justified' if they are supported by appropriate and robust evidence. Proposed modification MM115 is not supported by any additional appropriate and robust evidence. It must therefore be assessed against the VALP evidence base, on which the Council has relied during the examination to date.
In this respect, it is noted that the Housing Topic Paper (January 2018) states;
"The council has engaged consultants Dixon Searle Partnership to advise it on viability. They have concluded that the 25% affordable housing requirement should be viable in almost all cases. They have further advised that the affordable housing requirement of 30% could be viable in some cases.
In the Vale of Aylesbury Local Plan Viability Assessment Final Report (August 2017), it is further noted that 'Value Levels' in Buckingham are typically lower than elsewhere in the District. In this respect, Figure 7 (at page 64 of the Assessment) identifies the 'Buckingham Overall Range' (of values) ranges from an average of £3,150 sq.m to £3,750 sq.m, which encompass categories 'VL2 to VL4'. In contrast, the Overall Range for Aylesbury (town) extends from 'VL2 to VL5', the 'Northern
Vale Range' extends from 'VL3 to VL6', whilst the 'Southern Range' extends from 'VL4 to VL7+'(1).
Accordingly, the proposal (set out in MM115) to rely on evidence, which the Council acknowledges to be out-of-date, cannot be a sound approach. This is particularly the case, as to do so would apply a 35% affordable housing requirement in Buckingham and so impose the highest tariff in the lowest value area. This cannot be regarded as an approach which is sensible, justified or (as explained below) effective.
Effective
For a Plan to be regarded as effective, it must be deliverable over the Plan-period. However, in view of the concerns raised above, MM115 will render the Plan ineffective. As has been stated, the proposed Main Modification would see a 35% affordable housing requirement be applied at Buckingham, whilst a 25% requirement would apply in higher value locations. This creates an incentive to direct future development away from Buckingham (a 'Strategic Settlement' as identified
in the proposed AVLP settlement hierarchy) towards more viable, but potentially less sustainable, locations. This consequence cannot be the true intention of the Plan, yet it is the inevitable outcome of MM115, if progressed.
The unintended consequences described above would invariably result in significant delays and, as such, it is recommended that proposed modification MM115 should be deleted. However, if MM115 is to be progressed, then the housing trajectory presented in the Plan will need to be reconsidered, as underlying assumptions concerning the delivery of the proposed allocations may no longer be valid. Likewise if a 35% affordable housing requirement is to be applied in Buckingham (assessed as the lowest value area in the district), then it may be necessary to consider increasing the scale of growth proposed at the town, in order to facilitate the Plan's viability and effectiveness. If it is not possible to significantly increase the apportionment to Buckingham, it may also be necessary to consider additional allocations elsewhere across the District.
(1) The 'Northern Vale' area includes Winslow and a number of smaller settlements. The 'Southern Vale' area includes Haddenham and Wendover, as well as further lower-tier villages.
In turn, it may be necessary to reconsider the Plan's spatial strategy and the broader approach to housing provision, and infrastructure delivery.
Such measures may be necessary to ensure that the Plan remains effective, both as a mechanism for meeting housing needs arising in the Vale of Aylesbury and accommodating the unmet need of adjoining authorities.
Consistent with National Policy
A key test of soundness is a Plan's consistency with National Policy. If a Plan fails to accord with national policy, it will fail to deliver sustainable development and cannot be regarded as sound. Three key concerns are raised in this respect and these are noted as follows;
Planning Obligations
The Housing Topic Paper (January 2018), which forms part of the Examination Library (ref. CD/TP/001) states;
"...the starting point for determining the level of affordable housing to be pursued in VALP is the forecast level of need rather than the calculation of what might be viable overall. Pursuing a higher target than justified by the need would, it is considered, contravene the Community Infrastructure Levy"
Similarly, the archived Planning Practice Guidance ('PPG'), against which the VALP is examined, states at Paragraph: 005 (Reference ID: 41-005-20140306) that;
"The National Planning Policy Framework requires that the sites and the scale of development identified in a plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened."
As such, for the Council to propose a modification that will implement a higher affordable housing requirement than is justified in the (up-to-date) evidence base, would contravene the PPG and Community Infrastructure Levy ('CIL') Regulations (2010). Indeed, CIL Regulation 122(2), indicates that a planning obligation may only constitute a reason for granting planning permission for the development, if the obligation is necessary and reasonable related (in scale and kind) to the
development. MM115, if adopted, would prevent this test being met.
Viability
With respect to viability, it is remarked that, although the VALP is being examined against the policies of the archived NPPF 2012, planning applications are determined against the current NPPF (2019). NPPF paragraph 57 indicates that;
"Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. All viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available."
As such, if applicants submit viability assessments (in support of their proposals) they will argue that no Plan-stage viability evidence was presented in support of MM115. Applicants will also highlight the fact that the Council (in its response to the Inspector's Question 79) has stated that affordable housing requirements presented in made Neighbourhood Plan, are out-of-date. In this respect, it will be argued that the Neighbourhood Plan policy requirements for affordable housing were not based
on specific viability assessments for the relevant Neighbourhood Plan Area. Rather, the Neighbourhood Plan's simply drew on parts of the VALP evidence which were available at the time, but which have now been rendered out-of-date. Indeed, in the case of the BNDP, the 35% affordable housing requirements was based on the 'Vale of Aylesbury and Stage 1 Community Infrastructure Levy Viability Study' (2012), which was prepared in support of the then emerging Local Plan (which was withdrawn). In this context, MM115 cannot be regarded as being consistent with the approach to viability being pursued in national planning policies.
Role of Local and Neighbourhood Plans
Counsel's Opinion at paragraphs 9 to 31 (as attached at Appendix 1), confirms that the role of a Local Plan is to set out strategic policies. This contrasts with the role of a Neighbourhood Plan, which is to shape and direct non-strategic policies, and support the delivery of strategic policies set out in the Local Plan. This is clearly articulated in the archived Framework (2012) which, at paragraph 16, explains that the presumption in favour of sustainable development (as applied to Plan-making and as relevant to neighbourhood planning) means that neighbourhoods should;

- "develop plans that support the strategic development needs set out in Local Plans, including policies for housing and economic development;
- plan positively to support local development, shaping and directing development in their area that is outside the strategic elements of the Local Plan;"
NPPF (2012) paragraph 184, adds that;
"...The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan.... Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies."
Whilst paragraph 185 states;
"Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over existing non-strategic policies..."
The NPPF (2012), at paragraph 156, sets out what matters are encompassed by 'strategic policies',
noting that these include policies to deliver "the homes and jobs needed in the areas". It is quite correct that the VALP sets out a strategic policy (Policy H1) which provides the affordable housing requirement for the District. This requirement, as confirmed by the Local Plan evidence base (and pursuant to the appropriate methodology), should be set at 25% provision. For the VALP to be modified in such a way that an otherwise evidence-based policy is selectively ignored, in favour of
out-of-date Neighbourhood Plan policies, is both arbitrary and inconsistent with national policy.
Simply put, there is no basis in national policy for the Local Plan to delegate strategic policy-making to Neighbourhood Plans, in the way envisaged in MM115. Likewise, there is no justification for allowing an affordable housing requirement to be applied, which the Local Plan evidence-base finds to be unviable. It also does not matter that a number of Neighbourhood Plans (in Aylesbury Vale) have been made prior to the Local Plan. This is because Neighbourhood Plan policies must either
conform to the strategic policies of the Local Plan or must be over-ridden by them. Neighbourhood Plans can be brought into conformity when they are reviewed.
Conclusions
For the reasons explained, the proposed Main Modification (MM115) would alter VALP Policy H1 in such a way that the Plan would not meet the tests of soundness as described in NPPF (2012) paragraph 182.
The proposal to apply affordable housing requirements set out in made Neighbourhood Plans would mean that a key strategic policy in the VALP would no longer be based on the most up-to-date evidence. Consequently, there can be no certainty that the modification would not result in Plan's proposed allocations becoming unviable. Because of this, MM115 risks undermining the Plan's
overall capacity to meeting identified housing needs.
Furthermore, this proposed Main Modification has been put forward at a late stage in the Examination process and it does not respond to the recommendation(s) of the Inspector. The introduction of such a fundamental change necessitates meaningful consultation and discussion, and requires that AVDC prepare a further Local Plan Viability Assessment. Accordingly, should the Inspector be minded to support MM115, then it is requested that further Examination hearing sessions be scheduled in relation to Policy H1 and all other VALP policies that may be affected by it.
Wates requests that it is permitted to participate in any such hearing sessions.
On the basis of the forgoing, it is clear then that MM115 is unnecessary, arbitrary and inconsistent with national policy. It will, as a matter of fact, be prejudicial to the soundness of the Plan. Accordingly, on behalf of Wates, it is submitted that proposed Main Modification 115 is deleted and proceeds no further.
Yours sincerely
Mike Newton
Director
Our full representation is provided on the accompanying document (Attachment), together the Legal Opinion provided by Sasha White QC.