Housing Held Hostage

Brighton and Hove has a social need housing crisis alright but the appearance of bloated, ‘luxury’, unaffordable developments seek to solve a very different crisis.  If decision-making has a ‘meet the targets or else’ gun to its head; and if reaching those targets is nigh impossible… shouldn’t we be told the truth?                                               

In Part 1 of two articles Adrian Hart takes a look at the facts…..

Has anyone noticed how Brighton and Hove’s strategy for solving the ‘housing crisis’ is to wedge strangely uninspiring blocks of unaffordable ‘luxury’ apartments into every conceivable space? If you ask the council about this they will tell you that central government drives this phenomenon.  If pushed they might mutter the words ‘five year housing land supply’ (5yHLS) and how the city doesn’t have one.  They’ll almost certainly mention ‘affordable homes’ and how a reasonable percentage of these will be included in the luxury blocks.  

It’s certainly true that the council is obligated to pursue the house building targets government set, but you may also have detected a whiff of duplicity.  Our council not only gift wraps its housing policy as though it were tackling social (as opposed to market) need, but it seems to positively revel in the steady, largely unregulated, transformation of the built environment this phenomenon entails. And all the while Brighton and Hove’s ‘housing crisis’,  (the real one where its citizens can’t afford accommodation) is made worse. In what follows I’ll explain why the council is duplicitous and why its actions are corrosive not just to the look and feel of the city but to its democracy.

A Rubber Stamp?

Our ten elected representatives who form the planning committee could be replaced by a single rubber-stamp wielding technocrat for all the difference they make. As for those planning hearings at which spirited public campaigns make last ditch attempts to be heard, why bother? If a council knows full well that satisfying government targets means a bad development will be waved through come what may, why not say so?   It knows that whole neighbourhoods frequently mobilise to devote hundreds of campaigning hours meeting, discussing, writing letters and crafting reports.  But it seems the appearance of a democratic process is more important. It sometimes feels like, for the council, ‘public engagement’ operates at a level similar to letting children believe in Santa. For the rest of the city population the local press frequently smooth things along with good-news stories heralding how a development will at least deliver much needed new and affordable homes.

The Five Year Housing Land Supply (5yrHLS) Penalty.

In March 2019 I gave a deputation to the Tourism, Development and Culture Committee (TDC). My 600 words (to be spoken inside 5 minutes) invited the council to admit that when it refers to “the housing crisis” it really isn’t talking about social need at all. And when it refers to ‘affordable housing’ it’s actually talking about unaffordable housing. (To be fair, the council will sometimes talk about homes which people on mid or even low-incomes might afford but you’ll know when they do because the language shifts, excitedly, to “genuinely affordable” or “social” housing).

The Chair’s pre-prepared answer chose its wording carefully: “Policies in the City Plan go as far as they can [my emphasis] to address local issues, such as housing need, within [government set] rules. For example, by setting a target of forty percent affordable housing…”

My 600 words had made reference to the penalty imposed by government on those planning authorities unable to set out a convincing 5yHLS. The penalty means that City Plan policies on things like architectural design and building scale (and, I might add, an agreed minimum of ‘affordable housing’) are ‘out of date’ – non-binding and secondary to the requirement to catch-up on those new-homes targets.

Orwellian doublespeak

The Chair’s response to this was effectively don’t worry, you can trust us. Every planning application is, the Chair reassured, carefully scrutinised by ‘planning officers and technical experts’. As this message was read out to me, committee members smiled and nodded as though they, at least, felt reassured. After all, planning officers wouldn’t advise them to grant a developer’s wishes if they had ‘significant concerns’  (would they?) Given my deputation had cited the Edward Street Quarter where 168 luxury apartments had been approved based on a promise of only 20 percent “affordable housing” my plea that the Chair’s reply spare me the Orwellian doublespeak had clearly come to nothing. The reply not only used the misnomer ‘affordable housing’ but re-stated the council’s apparent commitment to ensuring 40 percent of it.

I think it’s fair to say that the council avoids the truth.

In a nutshell:

• Borrowed from its quasi-judicial planning context, the phrase ‘affordable housing’ invariably means the opposite (it means ‘discount homes’ priced at 80 percent of the price-tag dangling from the ‘luxury’ ones).
• Moreover, developments that actually deliver 40 per cent ‘affordable’ housing are extremely rare. If, midway in a scheme, figures can be produced showing unforeseen costs will threaten profit margins, then the phrase “40 per cent” can be “flexibly applied” or eliminated altogether.
• The inability of the city to demonstrate the all-important 5yHLS means the City Plan must bend to the inexorable demand of government house building targets.

In other words quotas for homes deemed ‘affordable’ and scrutiny of such things as construction scale, architectural design, provision of green space ….all become side-lined by ‘presumption in favour of sustainable development’. The government spells out the policy in slippery words:

‘…..permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits.’ [my emphasis].

So there we have it. Those planning committees formed out of elected councillors whose purpose, we once assumed, was to act as a democratic safeguard are, in practice, nothing of the kind. If significant numbers of new homes are offered dubious schemes get waved through.

The example of Ellen Street.

If proof were needed that the 5yHLS penalty trumps scrutiny the example of the Ellen Street development provides it. Because the planning proposal was brought to committee a whole year before the 5yHLS debacle occurred and included an outlandish breach of City Plan objectives, planning officers urged it be rejected.

Defying the council’s 40 percent ‘affordable housing’ requirement was one thing (developers clutching Financial Viability Appraisals typically do this with great success), but in this instance a measly 18.8 percent was offered (even the District Valuer Service assessment of 25 percent wasn’t acceptable to the developer). And so the application was rejected for this specific reason (as opposed to its proposal for a 17 storey high rise conglomeration).

However, this developer only needed to wait a year before it knew a court appeal would be successful. Once the council lost its ability to demonstrate a 5yHLS the appeal inspector was able to pronounce that the scheme should be approved because it provided ‘much-needed new market and affordable housing and commercial space, and has the potential to open opportunities for employment during construction and operation stages’.

The example of the Edward Street Quarter.

Almost as if they were waiting in the wings for the 5yHLS to go belly-up the developers First Base, and planning officials for the proposed ‘Edward Street Quarter’ finally agreed a hearing date of July 18th 2018. Having intimated several likely hearing dates across May and June, July 18th was the first slot to come along after the 5yHLS sanction hit on June 29th. Despite a 36 page pro-development (but not the First Base development) report submitted by neighbourhood campaigners, First Base’s application for 168 luxury apartments and 170,000 square feet of commercial space was approved.

Hopes that an application halving the ‘affordable housing’ target and contravening at least three other City Plan policies would surely be deferred were about to be dashed on the rocks of NPPF paragraph 11 following the ‘Ovingdean’ case referred to below  in “The Facts” para 2.

Ahead of the vote, and ensuring that the planning committee properly understood the futility of a rejection decision, a council lawyer was on hand to warn that a developer court appeal would likely be won (with costs served on the council). Onlookers at this hearing – like others since – got the distinct impression that those committee members who voted to reject only did so, once ensuring they would be safely outnumbered.

Obey the Developer: A Gun to the head of city planning.  

The Facts:

1. Targets inevitably missed:

• In the case of Brighton and Hove the government had previously worked out that its ‘Objectively Assessed Housing Need’ (OAN) for the twenty years 2010 to 2030 demonstrated that the city needed to build 30,120 new homes (1,506 per year).
• This staggeringly unrealistic OAN figure was, in 2016, accompanied by a more modest City Plan target of 13,200 new homes. The government allowed this on the basis that this lower figure “is expressed as a minimum, which offers scope for that number to be increased when more detailed consideration of individual sites is undertaken for the preparation of the City Plan Part 2”.
• In July 2018 the government changed its method of calculating housing need via the Housing Delivery Test (HDT). Currently set at a 924 minimum per year, market-assessed ‘housing need’ is calculated to rise to 1,450 new homes built every year by 2026.

2. Penalties conveniently imposed:

• In June 2018 the government ruled in favour of a court appeal from a developer following planning rejection (the Ovingdean case). The government inspector determined that the Council’s five year supply was overly optimistic and considered there to be a shortfall in the five year supply. Without a five year housing supply (5yrHLS), relevant development plan policies must, reminded the inspector, be regarded as out of date and planning permission should be granted under paragraph 11 of the NPPF unless “any adverse impacts of so doing would significantly and demonstrably outweigh the benefits”.
• In February 2019 government HDT figures showed housing delivery in the city over the past 3 years had been below 85% of the City Plan target. The Paragraph 11 penalty remains therefore, firmly in place.
• It gets worse: as the council chases its illusive target, the target increases annually thanks to the government adding the shortfall back on according to an ever rising ‘buffer’. In other words, so long as a 5yrHLS can’t be achieved purveyors of bad development have never had it so good.

The exception which (probably) won’t prove the rule
It is important to acknowledge those rare moments when our Council’s planning system takes a break from being an ‘anything goes’ rubber-stamping machine. But it’s also important to note that rejections still risk a U-turn at appeal.

When a proposal contains features risible to the point of vexatious, the process can it seems, countenance an unsticking of the pendulum sending it swinging to rejection. One such example was a proposal for a complex of several tower blocks on the Sackville Trading Estate in Hove. Although it gained the support of planning officers, the scheme to create over 850 new homes was rejected at a July 2019 hearing that saw committee members voting 8 to 2 against.

A shocked spokesperson for developer Moda Living scolded the council’s decision: “It is regrettable that elected members have gone against planning officers in opposing a scheme that would have contributed nearly 20 per cent of the city’s five year housing supply need…”

Coming soon after a May election shake-up, it was probably the handful of newly elected committee members alongside a new, less servile committee chair that made for a less obedient mood at this hearing. Planning officers typically produce pre-hearing reports that diligently highlight any problems with a proposal. In the Sackville case these included “deficiencies in the standard of accommodation in respect of sunlight…” and the “heritage harm” done to nearby locations. It even included the whole of the Brighton Society’s objection.  But as with so many dubious large scale proposals, officers then deploy NPPF paragraph 11 to relegate these deficiencies as less important than the “public benefits” of the scheme – such as its provision of new, albeit unaffordable, homes.

Whether or not it was former Labour council leader Daniel Yates’s intention to light the fuse, his scrutiny of per-bedroom rates in relation to the cost of a flat, did just that. The answer Daniel Yates was given revealed that the developer’s version of ‘affordability’ was based on three people per bed. From there it was downhill all the way for Moda Living as newly elected members (notably including Independent councillor Bridget Fishleigh), remonstrated over the absence of affordable homes. However, this key reason for rejection had to be censored.

Despite the Chair proposing a motion to refuse the application (on grounds of poor housing mix, heritage harm, lack of employment space, daylight issues and lack of amenity), after adjournment to seek legal advice it was the last line of the motion – lack of affordable housing – that got cut out. The amended motion to refuse was carried 9 votes to 1. With the threat of the developer appealing the decision in court firmly in-mind, the council must choose its words carefully.

When the inspector calls, any evidence that a planning decision had questioned a developer’s rationale for maximising numbers of new homes is best left out.

The fact that our councillors depend so heavily on unelected senior officers is a worrying enough state of affairs all by itself. The meekness of the councillor layer leaves the officers alone in the driving seat. Decision-making needs political direction from councillors who, in turn, seek their direction from us.

In Part 2 of this essay (to be published shortly) – A Pied Piper Policy – I argue that there is an urgent need to end the delusions around “the housing crisis” and consider what first steps we might take towards a re-energised, democratic and innovative way forward.