Substantial weight awarded to a single unit of self-build and custom housebuilding at appeal

The appeal decision (APP/F2415/W/22/3296353) issued by Inspector Young on 8 September 2022 following the Hearing held at the offices of Harborough District Council on 16 August 2022, allowed both appeals for a single self-build and custom housebuilding unit on land adjacent to Walton Hall and ended a long running saga around this particular site.

Firstly – and most importantly – it meant that our client, a local family with longstanding social ties to the village and two young children, who have been trying for approaching two years to obtain a consent and had already been subject to a no-fault eviction from the Private Rented Sector (where insecurity of tenure is rife) and were now living in even less suitable privately rented accommodation - would finally be able to have their housing needs met in a more affordable way.

Just to be clear, a ‘no-fault’ eviction is exactly what it sounds like. It was due to no-fault of the family. They were not in rent arrears, they were not troublesome neighbours, they had not damaged the property – they had not put a foot wrong, yet they were still being evicted which any private rental sector landlord is entitled to do.

For additional context, the family had been unable to access the open market in the Parish due to the very high costs of purchasing a home there, so the self-build route provided an opportunity for a more affordable route to home ownership for them, predominantly due to:

i.????????????????????The ability to build or self-finish elements themselves to save costs;

ii.??????????????????The VAT reclaim for self-builders;

iii.????????????????The Governments ‘Help to Build’ equity loan;

iv.????????????????The highly energy efficient design of the home (even more important than ever in the midst of an energy costs crisis) which would be far cheaper to run; and

v.??????????????????The fact that they had designed their ‘forever home’ so there were not likely to be cost to extend or move home because they’d not had to settle for an imperfect solution to meeting their particular needs.

Secondly, it provided clarity on the way in which Policy GD4 of the Council’s Local Plan should be applied. For the uninitiated, Policy GD4 allows for residential development in countryside locations subject to one of six criteria being achieved, the first of which at GD4(a) is for:

“Housing on small sites of no more than 4 dwellings which are within or physically and visually connected to settlements and which meet a local need for housing or a particular type, including small dwellings for the elderly and starter homes, providing this has been evidenced through a rural housing needs survey or a neighbourhood plan.”

?In essence, there are four component parts to GD4(a) each of which must be met:

-?????????Part 1 – it must be a small site of no more than 4 dwellings;

-?????????Part 2 - the dwellings must be physically and visually connected to the settlement in question;

-?????????Part 3 – it must be for housing that meets a local need for a particular type; and

-?????????Part 4 – that need must have been demonstrated through a Housing Need Survey or Neighbourhood Plan.

The story began for us with an instruction from the landowner for Tetlow King Planning to undertake a Parish Housing Need Survey. The landowner was cognisant with the requirements of GD4(a) and wished to explore what the local housing needs were to consider what the options may be for their land. A perfectly fair and understandable position to take by a landowner.

What muddied the waters somewhat was that there was an existing Housing Need Survey (HNS) undertaken in 2019, however it did not cover the entire Parish, it pre-dated the Covid-19 pandemic and despite being undertaken post 2019 NPPF, did not consider all the types and tenures of housing contained within the NPPF at that time. Furthermore, the council’s Planning Obligations SPD had since set out that a HNS should only be considered valid for 3 years which meant that it was due to time expire.

That 2019 survey was relied upon by the Council in consented two dwellings immediate adjacent to our appeal site which they contended was in line with Policy GD4(a).

The 2019 HNS found a need for 2 affordable homes and a requirement/demand for 4 open market dwellings in the village of Walton, but did not survey the wider Parish. The wording of Policy GD4(a) is clear – it is ’need’ that must be demonstrated for compliance with the policy to be achieved.

Our 2021 survey identified that the greatest level of need was for self-build and custom housebuilding within the Parish – with one such respondent (who was to later become our client) being in need due to the fact they were residing in the private rented sector (PRS) in an unsuitable house with insecurity of tenure.

Following a chance discussion between the landowner and (the family who later became) our clients in the village, it emerged that they were the respondents to the Tetlow King HNS that were in the PRS, unable to access homeownership in the Parish and were looking to do so through the more affordable route of self-building in order to maintain their longstanding social ties to the Parish. I am already a believer in fate – but this confirmed it – and with the ambitions of the respective parties aligned, in short order a subject to planning deal was agreed between the parties and an application prepared.

An initial application was submitted for the family by Staniforth Architects. Despite the results of our 2021 survey being submitted in support the Council maintained that the 2019 HNS remained the most up to date position and therefore a local need had not been demonstrated – with the additional suggestion that our HNS was not independent or objective.

During the original application, the family were put on notice by their landlord that they were considering serving a no-fault eviction notice in order to sell the property. At this point the architects brought Tetlow King in to help with the policy arguments around housing need. The Case Officer was made aware of the very real threat of eviction to the family immediately, yet seven days later without warning the Case Officer issued the Decision Notice under delegated powers refusing the application. Within a matter of weeks of this the family were indeed evicted on a no-fault eviction.

The Council cited a single reason for refusal, claiming conflict with Policies GD2, GD3, GD4, H3 and H5, and that the HNS identifying a need for self and custom build could not be considered an objectively assessed need and would result in what the Council called ‘an unfettered’ new dwelling in the Countryside. There was not a single technical objection to the proposals from statutory consultees.

The ‘GD’ policies are intrinsically linked. Policy GD2 is achieved by default where Policy GD4 is complied with and similarly policy GD3 is met where GD4 compliance is achieved. GD4 therefore had to be determinative in achieving a Development Plan compliant proposal.

The family took time to consider their options and whether they had the finances (and appetite) to go again. To help with this decision we advised that legal opinion should be sought which was provided by Andrew Parkinson of Landmark Chambers. The advice received from Andrew was critical to arriving at the decision that - despite budgets now running very tight - it was in fact worth trying again and pursuing an appeal against the first refusal as well as the second application should the resubmission also be refused.?

The appeal against refusal of the first application was submitted in April 2022 and the Planning Inspectorate agreed with our contention in our appeal submission that it should be heard by way of informal Hearing because the appellants were in a difficult situation in terms of housing need. Together with the fact that the Council had called into question the very integrity of Tetlow King and the way we conduct housing need surveys so resultantly it was critical that the Inspector was able to question us in person on this point.

We advised a resubmission with additional material to deal with the original reasons for refusal alongside concurrent appeal submission on the basis that if the second application was approved, we could withdraw the appeal (which would likely take a year or so to be heard, or so we thought…) – as ultimately, we just wanted to get the family suitably housed as expeditiously as possible. Events overtook us somewhat as we were allocated into the Rosewell procedure given our clients personal circumstances so were given a Hearing date within three months of the appeal submission!

Turning then to the resubmission, to deal with the Councils criticisms of the ‘unfettered’ new dwelling as they termed it, Beth Youngs of Birketts was instructed - who Tetlow King regularly use on such matters - on the provisions of a Unilateral Undertaking which not only bound the landowner to only be able to sell to the family should consent be achieved, but also that nobody other than the family could implement the permission should it be achieved, and that completion of development could only be achieved by the family occupying the built dwelling. As the Inspector acknowledged at paragraph 8 of his decision, “as far as reasonably possible, the proposed development would not be, in the words of the Council, an ’unfettered’ new dwelling”.

A particular criticism of the first application from the Council was that the Tetlow King HNS was not objective as they considered it to be subjective because it was instructed by a landowner – unfortunately for the Council this statement came back to haunt them at the Hearing itself, but more on that later.

It was suggested by the Council that because Tetlow King were involved in other elements of the application itself then there was a lack of independence on our part.

To combat this criticism of the Tetlow King HNS, the landowner commissioned a specialist Housing Need Survey company, CNB Housing Insights, headed up by Chris Broughton and Nicola Broughton, to undertake another Housing Need Survey in 2022 entirely independent of any involvement with the first or any subsequent application.

Perhaps unsurprisingly, the CNB Housing Insights HNS results broadly aligned with those of the Tetlow King Survey undertaken a year prior. Yet despite a new ‘independent’ HNS and a deed that dealt with the ‘unfettered’ accusation being submitted with the application, the Council refused the second application for exactly the same reasons as the first.

We then applied to PINs to conjoin the second appeal with the first one to be heard on the same Hearing date in August as we had sought to resolve the issues of the first appeal and, once again, just wanted to get a decision one way or another for our client to remove the uncertainty plaguing their housing situation.

As many will be aware, the appeal process for a Hearing requires you to (ideally) agree conditions, legal agreement and Statement of Common Ground prior to the Hearing itself. To be fair to the Council these were all agreed relatively quickly and easily. Yet, there were some interesting points that arose from this:

1.??????Legal agreement

o??The Council refused to engage on this so we engrossed a Unilateral Undertaking that secured the self and custom build provision in line with the 2015 Act definitions, tied sale at grant of permission only to the appellants, restricted the land so that nobody else could implement it, and only the appellants could be in but the initial occupants

o??At the Hearing despite having had full sight of this for months and not raised issue the Council sought to criticise this on the basis that it was not secured as self-build in perpetuity which of course in itself is impossible. Because a self-build can only be a self-build the first time its built, otherwise you are in the realms of requiring demolish and rebuild at every resale which is an utterly nonsensical approach.

o??As the Inspector noted, despite this issue being raised by the Council no “alternative drafting [had] been suggested that would overcome its concerns”.

2.??????Statement of Common Ground

o??The Council agreed they had failed their statutory duty for Base Periods 1-3 and that self and custom build, and I quote, was a “key component of the Governments strategy to resolve the housing crisis”

o??Yet the Council did not attribute any weight to the fact that the appeal proposals would contribute towards this shortfall in their Statement of Case.

When the Hearing itself was upon us our clients and their two young children were there to hear what happened as it was so critically important to what happens with their lives and their children’s lives going forward.

For approaching 18 months the Council had refused to move from their position that Policy GD4 was not determinative because they said Policy GD2, GD3, H3 and (because of the self-build nature of the scheme) Policy H5 also applied and there was conflict with all these policies too.

The appellant’s position was that GD4 was determinative, and compliance with this meant that GD2 was achieved by default as was GD3. H3 was not applicable as it related to rural exception sites and H5 should only be applied once the general development (aka ‘GD’) policies had been demonstrably achieved as it was a housing mix policy so could not be used as a standalone policy test prior to establishing if the principle was acceptable.

The Inspectors first question to the Council at the Hearing was along the lines of “isn’t GD4 determinative and if it is met then everything else falls away”. Within the first 10 minutes of the Hearing the Council agreed it was. So, as it turned out, GD4 was determinative after all…

When challenged on the four strands of GD4(a) the Council did not sustain that part 1 or part 2 had not been met, so therefore everything hinged on parts 3 and 4.

Part 3 requires that GD4(1) compliant development must be for housing which “meets a local need for housing of a particular type” whilst part 4 requires such need to have been “evidenced through a rural housing needs survey or a neighbourhood plan”.

Throughout both applications the Council contended that the self-build nature was ‘demand’ and not a ‘need’ hence it did not therefore comply with GD4(a). However, at the Hearing the Council accepted that self-build could be housing of a particular type covered by the policy.

Both the Tetlow King Survey and the CNB Housing Insights survey found identified need for self-build and custom housebuilding opportunities to address local housing needs. The needs of our client were particularly acute given that they had already been evicted once and were now in even more unsuitable privately rented accommodation on a less secure tenancy footing with two young children.

The Council also contended that both appeal surveys were subjective rather than objective because they had been commissioned by the landowner. However, our investigations which were presented to the Hearing showed that the 2019 HNS that the Council relied upon was also instructed by the landowner for the piece of land to which it was then used to obtain planning permission for two dwellings immediately adjacent to the appeal site – which the Council appeared to be unaware of. How then could it be said that the 2019 HNS was objective rather than subjective when the exact same scenario had taken place in how the instruction to undertake the HNS came about.

When asked for specific examples of what was subjective as opposed to objective within the Tetlow King and CNB Housing Insights HNSs, as the Inspector notes in their report “the Council were unable to provide any examples”.

Worse yet, the Council relied upon the 2019 HNS as having demonstrated local need for housing or a particular type as their justification for the consent issued immediately adjacent to the appeal site. Yet that was plainly not the case.

The 2019 HNS found ‘need’ for 2 affordable homes and ‘demand’ for 4 open market homes. The consent issued by the Council which they claimed was GD4(a) compliant was for 2 open market dwellings which were not identified as a ‘need’ in the 2019 survey and to add insult to injury the Councils case to the appellants was that open market housing (which is what their self-build would be) could not constitute a ‘need’ it could only be deemed as being ‘demand’.

The Inspector explains in their report that at the Hearing “the Council was simply unable to offer any reasonable explanation as to why it had rejected the appellants housing needs surveys nor why its approach was so contrasted to that it took in relation to the Chapel Cottage scheme. There was no satisfactory response to the appellants criticisms of the 2019 report nor were the Council able to point to any deficiencies within the 2021 or 2022 surveys”.

As the Inspector noted, “it is not surprising that the appellants have raised concerns about the lack of consistency in the Council’s decision making”.

To their eternal credit, despite the intransigence they suffered at the hands of the Council, our clients are very reasonable people and chose not to pursue costs at the Hearing on the basis that they were well aware of the impacts of the budget cuts already imposed on local authorities and the difficulties they face as a result and did not wish to add to their burdens.

As anyone who reads the decision will see from the language used by the Inspector, if we had applied for costs, it seems likely that we would have been successful. So it is probably the fact that we did not that saved the Council from a full award of costs against them.

As the Inspector themselves said at paragraph 29 the council came “perilously close to crossing the unreasonable behaviour threshold” having already made clear that “the Planning Practice Guidance (PPG) states that Inspectors may use their powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made by another party. As is clear from my decision, I have found the Council’s approach to these applications to be concerning. I have therefore given serious thought to exercising these powers in this instance”.

At the Hearing the Council acknowledged that they had not met their statutory duty to meet Self-Build Register demand for Base Periods 1, 2 and 3 and had a pending shortfall for Base Period 4. They sought to contend that they may well have met it they just didn’t know about the permissions as it was difficult to monitoring unless you are a CIL charging authority.

As the appellant team pointed out, such an argument was without merit as the OneApp form on the Planning Portal has for many years had a section for applicants to identify that they are a self or custom builder and it was entirely within the Councils gift to have introduced a local validation requirement for self-builders to identify as such through a simple form. In addition to which, the appellants pointed out that the Council were asking to Inspector to take a view based on speculation rather than any evidence put before him.

Not forgetting of course that the Council had agreed in the SoCG that self and custom build was a key component of the government’s strategy to resolve the housing crisis.

The Inspector found on this point that – even though the appeal was only for a single dwelling – considering the shortfall in provision and the need to increase the supply of self and custom build being an important planning consideration the appeal proposals carried substantial weight. ?

Like all the best stories, this one had a happy ending.

If you would like assistance with your self-build or custom build application or appeal – or wish to undertake a housing need survey to consider development options for your land interests– then please get in touch with myself or Senior Planner, Leonie Stoate MRTPI.