Lawyer advises that failing to meet the Government’s housing figures could be ‘catastrophic’
A top planning lawyer has said that EHDC cannot expect a reduction in its housing figures even though more than half the district is in the South Downs National Park.
The Government has calculated a district-wide need of almost 11,000 new homes before 2040 for East Hampshire.
But with 57 per cent of the district protected from development by the national park, most of these homes must be built in parts of East Hampshire outside the park.
In June we instructed a King’s Counsel to look at the district’s unique circumstances and advise on whether a challenge on housing numbers might be successful.
Paul Brown KC, of Landmark Chambers, is an expert in all aspects of planning and environmental law, and public and local government law.
You can read our questions and his full response through the button below.
In response Mr Brown KC confirmed that, according to current planning laws, any Local Plan that failed to meet the Government-set targets would be rejected.
Furthermore he said the implications on our Local Plan could be ‘catastrophic’.
No Local Plan would mean more speculative housing applications, more uncontrolled development and less accompanying infrastructure.
Cllr Richard Millard, EHDC Leader, said: “There is a huge swathe of the district covered by the South Downs National Park.
“While development is not prohibited in the park it is significantly restricted. That means the housing East Hampshire needs must go primarily in areas of the district not covered by the national park.
“We argued that the presence and impact of the national park in East Hampshire provided exceptional circumstances and that our housing figures should be reduced accordingly.
“But a King’s Counsel has confirmed there is no basis for that expectation in law. He says if we don’t meet the needs, as laid down by the Government, then our Local Plan will likely fail, causing more speculative development on our most sensitive sites.
“This is what the law and national policy currently states. If we want a different answer then we would need a change in the law or national policy on housing.
"There are two sides to a coin and a new Government with the ‘mandate of the people’ is duty-bound to listen and understand challenge. Some things in life require challenge to ensure the outcomes at the end are correct.
“Accordingly, we are urgently considering our next course of action in this matter.”
In his response Mr Brown KC advises that EHDC does not depart from the Government’s figures, calculated through its ‘standard methodology’.
He writes: “I consider there would be a significant risk of EHDC’s approach to the assessment of need being found legally unsound if EHDC were to proceed on the basis that the existence of the SDNP (or of the SDNP Authority) was itself a reason for departing from the standard methodology.
“In my view, it is far from certain that a Local Plan Examiner would conclude that any such departure by EHDC was justified or sound.
“Critically, if departure was found either to be legally flawed or “unsound” as a matter of policy, the implications for the emerging plan could be catastrophic.
“For all these reasons, my firm advice is that EHDC should not depart from the standard methodology.”
The questions we put to the KC are:
- 'Is the scope of 'exceptional circumstances' limited to those circumstances relating to the inputs - i.e. to the interpretation of population, household or affordability data - of the standard method; or could it extend to other land-use planning (physical, environmental, administrative) considerations that are relevant to delivering housing needs?'
- What are the legal risks if the Council departs from the standard method?
- The standard method provides a useful starting point for the Local Plan – considering the circumstances of East Hampshire, what evidence could justify deviating from the standard methodology?
- How high is the risk to achieving a sound plan of deviating?