There have been a number of recent important appeals relating to later living development schemes in both urban and rural locations. These mostly involve larger retirement village (extra care) proposals. The appeals are often quite complex and involve a range of planning policy and strategy issues.
DLP, who are currently involved with 6 separate retirement living schemes, provided expert planning evidence at a recent public local inquiry into a proposal for a 133-unit Extra Care village at Sonning Common in South Oxfordshire in April/May led by Chris Young QC, assisted by Leanne Buckley Thomson. The scheme comprised a continuing care retirement community by Inspired Villages (part of the Legal & General) on a greenfield site within the Chilterns Area of Outstanding Natural Beauty. The Inspector, Harold Stephens, after the 10-day inquiry allowed the Appeal.
The scheme compromised major development in the AONB, and the Appellant, in addition to rebutting the allegations of harm, had also to demonstrate that the proposal satisfied both the “exceptional circumstances” test and “the public interest” test, pursuant to paragraph 172 of the National Planning Policy Framework, in light of the requirement that decision makers give great weight to conserving and enhancing the natural beauty of the AONB.
DLP also, as part of the case, addressed the prevailing shortfall in housing land supply, notwithstanding that the South Oxfordshire Local Plan had only very recently been adopted, but had been delayed by political changes within the Council. DLP’s evidence demonstrated a 4.21 year supply.
In terms of the main issue, Inspector Mr Stephens acknowledged that Sonning Common is a large village which borders the edge of the AONB and was itself “very much part of the local landscape context” in this area. He also acknowledged “Planning policy and statute give equal protection to all parts of the AONB” but went on to observe “I saw that the AONB in this location already contains a significant amount of built development. That contrasts significantly with the deep, rural area of countryside within the AONB” (para 56).
A significant factor in the appeal was the need case, as well as the existing supply of dedicated housing for the elderly and alternatives to the proposal. Specialist evidence was provided on the matter of need, and this was used by DLP in putting the planning balance case. Equally DLP provided an assessment of alternative development options based upon the council’s own evidence base and both together demonstrated a substantial shortfall in supply when assessed against need and also an absence of alternative sites, such that this provided the basis for both the exceptional circumstance and public interest tests.
In commenting on the position Inspector Stephens observed in relation to the Council’s case that “In my view there is a strong case that Mr Appleton’s 45 per 1,000 overall, with 30 per 1,000 to market extra care, should be far more ambitious given not only the true tenure split in the district but also what it could mean for the ability to contribute towards addressing the housing crisis”
The Inspector also accepted the case, put by DLP on behalf of the Appellant, that whilst the new Local Plan does have a policy encouraging specialist housing for older people, including seeking allocations on the strategic allocations, the policy requirement is generic. It does not allocate any sites specifically for Extra Care provision and that is significant because the Appellant was able to show how Extra Care delivers a lower return in terms of land value than other forms of age restricted and retirement living accommodation.
The Appellant, along with another Extra Care operator from their umbrella organisation Arco, attended the Local Plan Examination-in-Public to request the Plan be amended to ensure an Extra Care specific policy and allocations.
Inspector Stephens also found that the benefits associated with the development were significant material considerations and, taken together with the absence of landscape harm, the noted shortfall in the provision of specialist housing for the elderly, and the housing land supply situation overall, concluded that both the exceptional circumstances and public interest tests were made.
The new Local Plan, arising from the Rectory Homes decision, introduced a policy which requires affordable housing for C2 uses including Extra Care. This was introduced after the planning application had been made and raised difficulties insofar as the deal entered into by the Appellant and the landowner was concerned. A viability assessment was undertaken which demonstrated that the proposal, in conventional terms, was unviable. However, the landowner and appellant agreed to make provision for a financial contribution via a Section 106 Agreement in order to comply with the policy requirement.
The Council refused to negotiate on the sum required, notwithstanding the viability assessment, and this subsequently led them to make a cost claim against the Appellant, which was dismissed by Inspector Stephens.
Sonning Common Parish Council also opposed the development and appeared separately at the public local inquiry. The Sonning Common Neighbourhood Plan (2016) has a policy supporting the provision of extra care but does not allocate any land for that purpose, and notably, Sonning Common has a large elderly population and the provision of specialist housing for the elderly was seen as a key objective. The Neighbourhood Plan is in the process of review but that has not progressed beyond an initial issues and options stage in the last two years and therefore attracted no weight.
The Appeal Decision is important not only because it allowed major development in the AONB, but also because of its findings on the weight that should be given to the need/provision of specialist housing for the elderly, and its contribution towards five-year land supply. In addition, the overall housing land supply was a further significant factor and, in particular, how this should be demonstrated. At the time of writing an application for permission to apply to the High Court to challenge the Appeal Decision, under Section 288 of the Town and County Planning Act 1990, has been made by South Oxfordshire District Council on a number of grounds. The outcome of this is awaited.