Agenda item

Officers Report

 

The DMTL introduced the Officers report and recommendation for approval. He advised that this application was returning to Committee following deferral in February, an update report was provided from P.21 of the Agenda. The previous report was appended at p.25, with the list of conditions pending approval appended to p.27. As set out in the summery section of the report on p.23, an agreement has been reached between Flagship Housing and Hopkins Homes which would see Flagship purchase the originally proposed 23 dwellings on the site. Various forms of grant funding and S106 monies would be used to support this purchase.

 

The DMTL clarified that the developer’s affordable housing contribution of the site would remain at 0%, and the agreement reached by the parties was separate to the planning application.

 

Following discussion with Homes England, the DMTL advised that it would not be possible to secure the 23 dwellings to be purchased by Flagship within an amended legal agreement as there were grant funding limitations preventing this.

 

Public Speakers

 

Maggie Prior – Holt Town Council

Gemma Harrison – Objecting

Martin Batey – Objecting

Jonathan Lieberman – Supporting

 

 Members Questions and Debate

 

1. Local Member – Cllr G Perry-Warnes spoke in support of the representations made by objecting speakers, and stated that she was unhappy by the way in which the application had been considered at the last meeting. She stated that it was not right that the ADP received and passed on messages from the developer to the Committee during the meeting, and contended this would not have happened for a smaller individual household application.

 

Cllr G Perry-Warnes thanked Officers and Cllr W Fredericks (Portfolio Holder for Housing and Benefits) for their successful negotiations with Hopkins Homes, and stated that she welcomed the provision of 23 affordable homes. However, the Local Member affirmed that it was outrageous that the delivery of the affordable homes had only been enabled through grant funding sources, money which could now no longer be used for other much needed schemes of social benefit. She argued that as a result, Hopkins Homes preserved their guaranteed 17.5% minimum profit margin at the expense of others.

 

The Local Member recited an excerpt from the developer’s website ‘We help build communities’ and questioned whether this was true. She reflected that the developments in Holt were leading to an increase in second homes, and holiday lets. The development would lack the other supporting infrastructure needed by communities to thrive. Further, Cllr G Perry-Warnes reflected on other passages on the Developers website, and stated that whilst she did not question the developer’s standards, she questioned their definition of what is right, and right by whom. She contended that had the application been refused and gone to Appeal that it would have cost the developer much more, and therefore the small concession to sell to Flagship was not done out of the goodness of their hearts.

 

2. Cllr W Fredericks – Portfolio Holder for Housing and Benefits – paid tribute to Flagship and to the Councils dedicated team Officers for negotiating the deal. Reflecting on Hopkins’ Homes ‘building communities’ statement on their website, Cllr W Fredericks argued that the company providing their viability assessments do not share the same sentiments which Hopkins Homes profess to have. Hopkins’ Homes Viability Assessor (Pathfinder Development Consultants) writes on their website that ‘The provision of affordable housing or new development significant affects land value. We have significant experience in achieving results and add value to land owners and developers in this area. If this is to the point that the scheme is no longer viable, and provided a robust economic viability testing, a mix of affordable housing can be reduced or eliminated.’ Cllr W Fredericks affirmed that this behaviour and mentality, exhibited by Hopkins Homes and others, stops now. She advised she was putting in place protections to stop such instances from occurring, and that applications of this nature would be required to provide supporting viability reports, with soil samples requested which would be checked by the Councils independent advisor. Cllr W Fredericks stated that the people of North Norfolk deserve better, and that communities were being eradicated by Hopkins Homes and other developers.

 

3. Cllr S Bütikofer commended Officers for their hard work in finding a solution to the issue, but argued that the essence of the problem remained the conflict of protecting the profit of a developer against protecting a planning obligation for affordable homes which had made the development acceptable in planning terms.

 

She stated that the initial application would not have been agreed by the Committee without the affordable homes provision. Paragraph 55 of the NPPF states ‘Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations…’ Cllr S Bütikofer argued this had been done when the initial application was agreed. Further, Paragraph 58 of the NPPF states ‘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…’ Cllr S Bütikofer expressed her significant concern with regards Pathfinder Development Consultants, and considered such statements unacceptable. She argued that much work was required by the Local MP and by Government to ensure this was corrected. Cllr S Bütikofer questioned why the Council should take on the financial risk for the developer and in doing so adversely impact residents of North Norfolk.

 

Cllr S Bütikofer urged the Committee to seriously consider whether, in all planning conscious they could approve the application. She understood the concern of the Committee in potentially refusing the application and the risk and associated costs with losing at appeal and the need to protect the public purse, however she stated that if the Council didn’t put a stop to such actions now, when would it stop?

 

4. Cllr N Pearce stated that the conduct of Hopkins Homes at the February meeting was appalling, and that their lack of attendance was disrespectful to the Planning Authority. He stood by his prior decision for deferment and argued that it was a good thing as it would give time to negotiate and find solutions. Whilst solutions had been found, the cost was not to be borne by Hopkins Homes. Cllr n Pearce contended that it was a terrible situation, if the Council refused the application it risked 23 affordable homes, and if it agreed to the application it risked being criticised for taking the risk away from the developer. Further, he considered the extent of the number of household living in rented or social housing in Holt to be misunderstood with many only looking at the Towns pretty Georgian properties and it’s more affluent areas.

 

Cllr N Pearce expressed his disgust at Hopkins Homes, who he believed should have properly done their research when acquiring the site as the land was known to be contaminated. He stated that he was so angry it defied description.

 

He concluded by thanking Officers for their work, and reflected that the ADP was put in a difficult situation at the February meeting where he was obliged to relay the information provided to the Committee.

 

5. Cllr V Holliday agreed that there was a desperate need for the homes, however contended that the way in which this had been orchestrated was disgraceful. She sought clarity over the mix of S106 monies and grant funding for the purchase of the affordable housing.

 

6. The HSDM advised, with respect of the NNDC contribution, that £660,000 would be allocated from S106 receipts and £700,000 from other grant money received from central government (for the purposes of social housing in the district). The HSDM clarified these were not S106 contributions going into the scheme, rather, this was funding which had been accrued in lieu of on-site affordable housing provision from previous developments. The total contribution from NNDC would total around £1.4 million.

 

7. Cllr N Lloyd echoed Members comments that the conduct of Hopkins Homes was appalling, and considered that NNDC should take a stance against such behaviour exhibited by developers. He affirmed he was extremely concerned by any precedent the application may have.

 

8. Cllr P Heinrich expressed his disappointment at the state of affairs in the UK that developers were guaranteed an excessive profit, and considered that developers should be subject to the same level of risk as any other business. He affirmed that Hopkins’ behaviour demonstrated contempt for the people of Holt, similarly with their actions at alternate sites including at North Walsham, with the developer not showing care for the community, only for their profits. Cllr P Heinrich considered the Officers recommendation would secure Hopkins’ profit margin, with local residents offered some rented housing but not at a price that they could afford to buy. He considered the whole situation despicable, and affirmed that the developer should abide with agreed planning permissions.

 

9. Cllr R Kershaw reiterated his disappointment that no representative from the developer had been present at the prior meeting, and considered the way in which they conducted themselves was disrespectful. Further, having read the developers website he contended that they did not accord with their own philosophy of supporting communities. Cllr R Kershaw thanked Officers for their phenomenal work in finding a solution, but stated it was despicable that the developer will not be contributing to the scheme financially.

 

10. Cllr J Toye asked for clarity over Section 73.

 

11. The PL advised that a Section 73 application was where a planning permission had been granted, but where the applicant sought to amend certain conditions of the approved planning permission. By submitting a S.73 application the applicant could be granted a new planning permission without complying with a condition previously imposed on the previous permission. The PL advised, if granted, the S.73 would serve as a standalone planning permission.

 

12. The DM confirmed that the application presented to the Committee was a S.73 application and should be considered as a new application. It was a matter of planning judgement for the decision maker to weigh up all material issues, and whether the Committee were persuaded by the applicant’s argument as set out in the viability assessment. He noted that the applicant would be making other S106 contributions but not affordable housing contributions. The DM reiterated advice offered at the February meeting, of rules set out by UK Government regarding expected developer returns, which Officers must work within. He affirmed that Officers had spent considerable time negotiating since February to try and find a solution, and whilst the solution offered may not be the preferred option, it was considered the best way to ensure the delivery of the 23 affordable dwellings. The DM highlighted the risk, should the Committee vote for refusal of the application and for it to go to appeal, that there was no guarantee that the 23 affordable dwellings would be delivered.

 

13. Cllr J Toye thanked officers for their explanation, and praised them for all their efforts in trying to find a solution. He expressed his dissatisfaction with the developer and considered their earlier statement that the application would enable Hopkins Homes to deliver 23 affordable homes, disingenuous. He noted that Hopkins Homes was brought by a private equity investment firm in January 2022, and were therefore driven by profit. Cllr J Toye stated that it was not right the Council were being put in a position in which they would secure the developers profit. He advised he would be unable to support the application and considered as this was a new application under S.73, the Council would never have accepted the application without the percentage of affordable homes.

 

14. The ADP emphasised that it was a matter for the Committee as the decision maker to reach a decision on the basis of the Officers recommendation, the background information provided, and representations made from speakers. The key issue was the matter of harm that would arise if Members were minded to refuse the application. In understanding the level of harm, the ADP advised it was important for the Committee to consider other factors including the benefits to be delivered via S106 in terms of infrastructure investment as stated by the DM, and the proposed Uplift Clause which would deliver potential profits back into the delivery of affordable housing in Holt.

 

15. The HSDM advised that the housing which would be enabled through the NNDC grant and Flagship through the Homes England grant would be the exact same as those initially envisaged, the only difference being the funding route. 80% of the housing would be affordable rented properties and 20% shared ownership homes which applicants could buy as little as 10% as a starting share.

 

16. The PL relayed comments from Homes England who had made it clear that the S106 agreement as revised cannot, because of the terms of the grant funding, refer to the obligation that the 23 dwellings be affordable. The PL advised that Officers were working in the background to complete a private agreement between the Council and Flagship to ensure Flagship would always provide these 23 properties as affordable housing. She affirmed that Officers understood Member’s frustration with the situation and the need to put in place a different mechanism to secure the 23 affordable homes.

 

17. Cllr A Brown – Portfolio Holder for Planning and Enforcement – commented that he had voted for deferral of the application in February in the hope that a scheme could be agreed which may include changes to layout or composition of homes. He stated that he had attended the site ahead of the meeting and spoken with an operative who advised that the 23 affordable homes would be built. Cllr A Brown reflected that it was a sad situation, and that it was a matter for government to address the rules which ensure guaranteed profit return for developers, noting the levels of lobbying by developers to government. With reference to the applicant’s representations, Cllr A Brown contended that they had sidestepped the issue of contamination on the site which he believed was the catalyst for the re-visiting of the application and of the viability assessment. Having reviewed the contamination inspection reports provided by surveyors on the two applications, Cllr A Brown considered there to be little difference, and added that only a limited number of properties would be affected. Further, he drew conclusions that there must have been underperformance of surveyors who had failed to make the extent of the contamination clear in such a way that it had clouded the negotiations and the land price offer by the developer.

 

18. The Chairman asked the Councils independent assessor to clarify the current position.

 

19. The Independent Assessor advised that it was expected that any reasonable developer would do their due diligence when acquiring a site. He noted that Hopkins Homes had owned the site for several years and that when the original application was submitted in 2017 no viability case was submitted seeking to vary the amount of affordable housing delivered, this was only done just before the commencement of development. He could not comment on why the developer had not undertaken a viability assessment until more recently, all he could do was to assess the information before him at this point in time in accordance with the appropriate guidance.

 

20. Cllr A Brown stated he was minded to refuse the application, and would do so with an extremely heavy heart for the people of Holt and for those households in need of urgent accommodation.

 

21. Cllr L Withington felt the Council were essentially being blackmailed by the developer. If Members were to accept the application, this would result in 23 affordable homes but at public cost and without developer subsidy, securing developer profit. Cllr L Withington noted the volume of households on the housing waiting list, and stated that this was a housing crisis.

 

22. The PL advised, with respect to some of the grant money coming forward, that it was only available annually. If Members were minded to refuse the application, there was the risk of losing out on millions of pounds of central government funding available this April, but which may not be available again.  She cautioned that Members must consider whether they have a serious and significant ground for refusal should the application go to appeal.

 

23. The ADP noted the strong local concerns, shared by Officers, and commented that Officers had worked tirelessly towards the delivery of affordable homes for communities.  He advised Officers must work within the body and the framework of the legislation, and on the basis of the professional advice received. Officers in this instance considered a pragmatic approach was required to ensure the delivery of affordable homes on this site. If approved in accordance with the Officers recommendation, a separate standalone agreement would secure 23 affordable homes for those on the local waiting list. The ADP advised that in addition there would be infrastructure investments that would occur as a result of this development, which may not occur or may be delayed if the development does not move forward. Further, the ADP affirmed that the developer would be subject to an uplift clause on the site, therefore if a profit was made which exceeded the value which had been considered to be appropriate under the regulations, then those monies would be made available again for commuted sums to be invested in the delivery of affordable housing in Holt. He contended that the recommendation presented to Members for consideration was robust and pragmatic, and had been carefully drawn after much negotiation. The ADP stated it was a matter of planning balance and that it was for Members to consider the whether or not the material considerations outweigh the harm which may arise from the development.

 

24. Cllr H Blathwayt expressed his concern that the application and the means in which the affordable homes had been secured would set a precedent. He contended this was a very difficult decision, and noted the risk that if the application were to go to appeal, and the Council were to lose, that no affordable homes would be built.

 

25. Cllr V Holliday affirmed her concern that it was currently an informal agreement with Flagship to secure the affordable homes, particularly as the finances were time limited. She sought assurances when a formal agreement would be reached and whether there would be any risk to loosing grant money if there were delays.

 

26. The PL advised that work had commenced on the necessary agreements to ensure that the affordable homes were delivered, with all agreements expected to run in parallel. A contract for the exchange and purchase of the dwellings would take place between Flagship and Hopkins Homes, with Flagship having entered into a contract with Homes England to obtain central government grant funding. NNDC and Flagship would also enter into an agreement relating to the Councils funding, with covenants in place to ensure that the 23 properties would forever be held as affordable housing. It was envisaged that the agreements could be reached within 4 weeks, and be formalised almost simultaneously.

 

27. Cllr P Heinrich asked what would be the fall-back position if the agreement were to fail.

 

28. In response to Cllr P Heinrich’s question, the ADP advised there would remain a substantive application which would remain undetermined. He affirmed that if Members were to agree to the proposal, the decision notice would not be released until the agreement was signed. The ADP outlined what would occur should Hopkins homes pursue development on the site beyond the point whereby they should otherwise, but commented he did not expect the developer would breach that in any way. It was his expectation that the standalone agreement would be resolved and that he had been reliably informed by the Housing Manager that these agreements were commonly used and were relatively simple to draw up.  If the agreement was not reached between Flagship and Hopkins homes the substantive application would return to Committee, likely in the next three months.

 

29. Cllr R Kershaw thanked officers for their sterling work, and affirmed his trust that they would ensure the 23 affordable homes were delivered. He stated that it was with a heavy heart that proposed acceptance of the Officers recommendation for approval, and considered that the need for affordable homes was greater. Cllr R Kershaw commented that he had no respect for Hopkins Homes, and considered their actions disgusting.

 

30. Cllr W Fredericks re-affirmed the desperate need for affordable homes in North Norfolk, and the circumstances surrounding the time-limited availability for funding. She considered that achieving 23 affordable homes for £1.4 million of Council contribution was better than the alternative, and reiterated that circumstances leading up to the current situation would not happen again.

 

31. Cllr P Fisher seconded the Officers recommendation.

 

IT WAS RESOLVED by 9 votes for, 4 against and 1 abstention. 

 

That Planning Application RV/22/0308 be given DELEGATED APPROVAL to the Assistant Director for Planning subject to:

 

1. The completion of a deed of variation to the original Section 106 Agreement associated with the approval of application PF/17/1803, or completion of a new Section 106 Agreement, whichever is more appropriate, to secure the updated affordable housing position and review mechanism;

2. The imposition of appropriate conditions (draft list attached at Appendix 2);

3. Any other conditions that may be considered necessary at the discretion of the Assistant Director for Planning; and

4. In the event that the Deed of Variation cannot be secured within three months of the date of Committee resolution to approve, to return the matter to the Development Committee for further consideration.