Dear Mr Harvey,

Thank you again for your response of 30 April 2025 regarding my request for a Planning Position Statement (PPS) to clarify how EHDC applies Paragraph 11(d) of the NPPF in the context of speculative development and cumulative harm.

To avoid any ambiguity in our ongoing discussion, I would be grateful if you could confirm the following:

1. EHDC’s Legal and Procedural Position on the Proposed PPS

I have prepared and shared a full draft PPS titled “Evaluating Adverse Impacts Under NPPF Paragraph 11(d)(ii)” for illustrative purposes. This document does not create new policy; rather, it provides a structured and lawful interpretation of how adverse impacts may be weighed when the tilted balance is engaged.

Please confirm:

• Whether EHDC’s position remains that the specific content of this PPS — in its current form — cannot be introduced into EHDC’s decision-making process via a non-statutory mechanism (e.g. as a Planning Position Statement, officer guidance note, or similar); and

• If that is the case, I formally request that this position be reviewed by EHDC’s internal legal advisers and that their written opinion be provided, confirming whether the proposed PPS content — as drafted — is lawfully prohibited from being adopted as a non-statutory interpretive mechanism.

2. Lawful Purpose and Interpretation Role of the Proposed PPS

Assuming there may have been an initial misunderstanding — and that there is no legal or procedural barrier to issuing the proposed PPS — I would like to reiterate why it is both appropriate and necessary.

The core judgment in Paragraph 11(d)(ii) of the NPPF is whether “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits.” This is a legally operative test that applies when policies are considered out-of-date due to housing land supply shortfall.

However, the term “adverse impacts” is not defined anywhere in the NPPF or Planning Practice Guidance. Nor is there any fixed method for evaluating them. Paragraph 11(d)(ii) also requires that decisions be made “against the policies in this Framework as a whole,” but does not explain what counts as an ‘adverse impact’ or how such impacts should be assessed consistently across the full aims of national policy.

This lack of definition creates a risk of inconsistency, opaque reasoning, and decision-making that is vulnerable to pressure — particularly when speculative applications are being assessed under the tilted balance.

The PPS I have proposed would not impose new criteria, but would transparently outline how EHDC interprets “adverse impacts” in line with national policy objectives. It ensures that decisions made under Paragraph 11(d)(ii) reflect:

• Plan-led delivery expectations;
• Infrastructure capacity considerations;
• The cumulative effects of speculative proposals;
• And the broader purpose of the Framework — to deliver sustainable development, not opportunistic growth.

Such clarification strengthens the lawful use of planning judgment, aligns with the Framework as a whole, and builds public trust in the tilted balance process.

3. Full Text of the Proposed PPS (for reference)

Planning Position Statement: Evaluating Adverse Impacts Under NPPF Paragraph 11(d)(ii)

Purpose: This Planning Position Statement (PPS) provides guidance on how East Hampshire District Council (EHDC) will interpret and assess “adverse impacts” under Paragraph 11(d)(ii) of the National Planning Policy Framework (NPPF) during the determination of planning applications, particularly where the presumption in favour of sustainable development (“tilted balance”) applies.

Context: Due to an identified shortfall in the district’s five-year housing land supply, Paragraph 11(d) of the NPPF is engaged. This introduces a presumption in favour of granting planning permission unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits”. The term “adverse impacts” is undefined in the NPPF and requires application of planning judgment.

Interpretive Guidance: This PPS applies primarily to major residential developments, which—due to their scale and cumulative implications—tend to generate significant impacts on infrastructure capacity, spatial coherence, and plan-led delivery integrity. EHDC will consider the following to constitute material adverse impacts under Paragraph 11(d)(ii), especially where cumulative or systemic risks are present: EHDC will consider the following to constitute material adverse impacts under Paragraph 11(d)(ii), especially where cumulative or systemic risks are present:

1. Plan-Led Delivery Undermined:

• Where the applicant, or any associated entity (including controlling companies, joint ventures, nominee partnerships, or persons with material interests), controls land that is allocated for development in the current or previous Local Plan, and that land remains undeveloped without valid justification (e.g. unresolved access, contamination, legal constraint).

• Where such an applicant seeks permission for a windfall or unallocated site under the tilted balance while delaying delivery on allocated sites.

• In these circumstances, the adverse impact includes strategic distortion of plan-led delivery, loss of infrastructure sequencing, and erosion of public trust. These behaviours — including holding undeveloped allocated land without valid constraints while promoting windfall sites, and fragmenting delivery responsibilities across nominee or associated entities — act directly against the core objective of the NPPF, which is to maintain sustainable, plan-led delivery of housing and infrastructure. When considered “against the policies in this Framework as a whole,” as required by Paragraph 11(d)(ii), such conduct represents a material planning harm. It undermines spatial strategy, delays infrastructure coordination, and erodes public confidence in the legitimacy of both Local Plans and national policy. As such, this harm may be deemed significant and demonstrable, even where short-term housing numbers are technically met — particularly where the developer controls deliverable allocated land but chooses to prioritise speculative or unplanned alternatives.

2. Saturation and Infrastructure Stress:

• Applications in locations already subject to recent approvals or pending proposals that collectively exceed local service or environmental capacity.

• Proposals that fail to align with known mitigation or delivery schedules (e.g. GP capacity, school expansions, transport upgrades).

3. Cumulative Environmental Harm Avoided via Fragmentation:

• Where cumulative thresholds for Environmental Impact Assessment (EIA) or Habitats Regulations Assessment (HRA) have likely been reached but avoided through application fragmentation.

• Where no cumulative assessment evidence has been produced despite previous development activity in the same location or held by the same promoter.

4. Delayed or Uncertain Delivery:

• Proposals with no firm commitment to delivery within five years.

• Applications with outline-only submission, minimal phasing detail, or historic underdelivery by the same applicant in the district.

Clarifications:

• This PPS is non-statutory and does not create new policy. It serves to transparently explain how EHDC intends to exercise lawful planning judgment under existing national policy.
• This PPS does not prohibit speculative applications but affirms that certain speculative behaviours may give rise to planning harm sufficient to outweigh the presumption in favour of development.
• Applications identified as presenting the above harms may still be approved where evidence is provided to demonstrably mitigate or override these impacts.

Application: This PPS may be used by planning officers, members of the Planning Committee, and statutory consultees when assessing the overall planning balance under Paragraph 11(d)(ii). It may also guide applicants and residents in understanding EHDC’s reasoning during periods where the tilted balance applies.

Review: This PPS will remain in effect until replaced or superseded by a development plan document, updated guidance, or formal planning policy. It may be reviewed in light of future legal precedent or national policy changes.

End of PPS.

4. Accountability and Governance

I have directed this request to the following elected councillors of East Hampshire District Council:

• Cllr Anthony Williams – Chairman, Planning Committee
• Cllr Charles Louisson – Vice-Chairman, Planning Committee

If EHDC declines to adopt the proposed PPS — designed to protect communities from the adverse impacts of speculative development — and fails to provide a clear, evidence-based legal or procedural rationale for its position, I will interpret this as a conscious choice by these named councillors to abstain from deploying available, lawful tools to safeguard the public interest.

Such a decision would indicate a preference for maintaining procedural ambiguity that disproportionately benefits speculative applicants, while deflecting responsibility toward national policy.

More seriously, it raises legitimate concerns about the fitness of those in decision-making roles to fulfil the core duties of local public service — namely, to protect the long-term interests of their communities, uphold the integrity of local planning processes, and ensure that decisions are made transparently, lawfully, and with consistent regard to the principles of sustainable development.

Where lawful interpretive mechanisms exist and can be deployed without policy conflict, declining to use them — without justification — undermines both public trust and democratic accountability.