Introducing Transparent, Consistent Guidance for Development Profit Transparency
🎯 1. Purpose of Phase 1
Phase 1 introduces clear and consistent transparency guidelines, applicable equally to all developers operating within East Hampshire District Council (EHDC). This approach will substantially improve EHDC’s control over local development, strengthening accountability, fairness, and ultimately enhancing the quality and affordability of local housing provision.
Phase 1 uses existing planning mechanisms to begin reducing excessive developer profits, improving delivery outcomes, and strengthening transparency — all without waiting for new laws or national reform.
It is designed to be implemented immediately by East Hampshire District Council (EHDC), using current powers under the Town and Country Planning Act 1990, National Planning Policy Framework (NPPF), and Planning Practice Guidance (PPG).
🎯 2. Phase 1 Objectives:
- Pressure speculative developers to deliver, not delay.
- Expose excessive profits and reinforce public benefit expectations.
- Maximise affordable housing and infrastructure from out-of-policy schemes (especially under the “tilted balance”).
- Reduce harm from underregulated development while the Local Plan remains out of date.
- Establish legal and administrative precedent for more formal mechanisms in Phases 2 and 3.
- Improve transparency in land ownership and speculative control across the district.
- Enable future deallocation of underperforming sites through proactive policy language.
- Build internal data capacity to inform planning decisions and support strategic enforcement.
All components below can be adopted administratively or through internal guidance — no new Local Plan policy or consultation is required.
Phase 1 consists of 13 administratively adoptable components, each of which is explained in detail on its dedicated subpage. These components collectively address delivery risk, developer conduct, transparency, and accountability—while enhancing EHDC’s control using existing legal tools and planning powers.
🎯 3. Benefits to EHDC
- Enhanced Legal Protection:
By formally adopting transparent guidelines as official council policy or supplementary guidance, EHDC reduces its exposure to developers’ potential legal challenges. When the guidelines are uniformly applied, developers cannot credibly claim unfair treatment or procedural improprieties.
- Greater Control and Effectiveness:
Clear guidelines empower council officers and planning committees to confidently require disclosure of viability assessments, developer profit margins, and land valuations. This transparency significantly improves negotiation outcomes, ensuring developers deliver community obligations, such as affordable housing, fairly and consistently.
- Reduced Risk of Developer Intimidation:
Developers frequently imply or threaten legal action or suggest they may delay delivery when their profits or agreements face scrutiny—despite often holding long-term land interests or options that make true withdrawal economically implausible in constrained markets like East Hampshire. Explicit and consistently applied guidance dramatically reduces these threats, as fairness and clarity in policy significantly weaken legal grounds for challenge.
🎯 4. Addressing Developers’ Typical Grounds for Objection:
1. Claims of Unreasonableness (Wednesbury Unreasonableness):
Developers might claim the council’s actions are unreasonable, irrational, or excessively burdensome (under Administrative Law principles).
Phase 1 Mitigation: A clearly articulated policy, adopted transparently and applied consistently, demonstrates reasonableness in both intent and execution. Courts favour structured and balanced policies. Moreover, in the current UK housing market—characterised by limited developer competition and persistent unmet housing need—claims of irrationality are unlikely to hold. Phase 1’s proportionality and public-interest purpose (affordability and land value fairness) significantly strengthen EHDC’s legal footing.
2. Breach of Established Procedure (Procedural Impropriety):
Developers may challenge EHDC if it deviates from established procedures without justification.
Phase 1 Mitigation: By formally integrating these tools into published guidance or supplementary planning documents, Phase 1 provides procedural clarity and alignment with existing planning frameworks, minimising any procedural ambiguity.
3. Violation of Developers’ Legitimate Expectations:
Developers may argue they had “legitimate expectations” based on EHDC’s past conduct, and sudden change harms those expectations.
Phase 1 Mitigation: While formal consultation is not legally required at this stage, EHDC may choose to notify stakeholders and make Phase 1 documents publicly accessible as a matter of good practice. This approach ensures transparency and consistency without the delays or obligations of a Local Plan review. The profit cap proposal—if introduced later via a Local Plan change—would undergo full statutory consultation. Phase 1, however, relies on pre-existing powers and practices, making developer expectations less enforceable.
4. Claims of Bias or Discrimination (Unfair Treatment):
Developers might claim that EHDC selectively targets certain applications or developers with restrictive measures.
Phase 1 Mitigation: Applying the same transparency standards to all applicants ensures equality before the law. Phase 1’s consistent, policy-based approach avoids discretion-led enforcement that could be perceived as bias.
5. Exceeding Legal Powers (Ultra Vires):
Developers may argue EHDC lacks the authority to impose disclosure or transparency-related obligations.
Phase 1 Mitigation: Phase 1 draws exclusively on established statutory tools, such as the Planning Practice Guidance, Town and Country Planning Act, Freedom of Information Act, and NPPF principles. As such, it operates clearly within EHDC’s legal powers.
6. Human Rights Considerations (Limited Relevance):
Developers might attempt to invoke the European Convention on Human Rights (ECHR), especially:
- Article 1 Protocol 1: Right to peaceful enjoyment of possessions
- Article 8: Respect for private and family life (less relevant commercially)
However, these protections typically do not extend to standard commercial profits. Courts rarely support such claims in planning contexts, especially where transparency policies are proportionate and pursue legitimate social aims.
Phase 1 Mitigation: Phase 1 ensures proportionality, clear legal basis, and objectives tied to the public interest (e.g., affordable housing and land value transparency). This alignment with legal precedent mitigates any ECHR-based objection.
7. Commercial Confidentiality Claims:
Developers often argue that disclosure of viability assessments, profit margins, or land values infringes on commercial sensitivity.
While confidentiality is protected in certain cases, UK planning law and guidance (NPPF, PPG) strongly favour transparency, particularly where public resources, land uplift, and housing need are involved. In reality, the UK housing market is not highly competitive at the local level; major developers often dominate large sites, and land is fixed and monopolistic in nature.
Phase 1 Mitigation: Phase 1 embeds public-interest justification and aligns with national guidance, allowing EHDC to reject generic or unsubstantiated confidentiality claims. It distinguishes genuinely sensitive data from what the public has a right to scrutinise and emphasises that transparency supports both public trust and better development outcomes.
🎯 5. Phase 1 Specifically Protects EHDC
- Shields EHDC from undue influence by ensuring that all development negotiations are conducted within a transparent, policy-based framework, rather than through informal or inconsistent channels.
- Reinforces public trust by demonstrating that decisions affecting local land and resources are governed by principles of fairness and openness, reducing the risk of perceived or actual corruption.
- Formalising clear standards and criteria up front demonstrates reasonableness and consistency—core legal safeguards.
- Transparent and public implementation makes it difficult for developers to claim unfair or selective treatment.
- Early communication through notice and publication reduces risk related to developer expectations.
- Measures are grounded in national policy and legal precedent, strengthening EHDC’s legal position.
- Formalising clear standards and criteria up front demonstrates reasonableness and consistency—core legal safeguards.
- Transparent and public implementation makes it difficult for developers to claim unfair or selective treatment.
- Early communication through notice and publication reduces risk related to developer expectations.
- Measures are grounded in national policy and legal precedent, strengthening EHDC’s legal position.
Conclusion
By formally adopting Phase 1 as a clear, transparent, and universally applicable framework, EHDC ensures robust legal protection, significantly improves its control over development, and directly addresses the typical objections raised by developers. When applied consistently and grounded in legal precedent and structured notice, Phase 1 dramatically reduces the risk of successful legal challenges. In doing so, EHDC not only aligns with best practice and national guidance but also reinforces its commitment to fairness, transparency, and public interest-led planning in East Hampshire.
🔩 COMPONENT LIST
⚠️ Summary Message
Phase 1 allows EHDC and local communities to begin taking back control of the planning process — immediately and lawfully.
By using powers already available under the Town and Country Planning Act, NPPF, and Planning Practice Guidance (PPG), EHDC can:
- Enforce build-out deadlines and transparency,
- Penalise land banking,
- Track and expose developer profits,
- Increase delivery pressure on speculative schemes,
- Protect the community from harm caused by out-of-policy approvals.
📌 Every tilted balance application (i.e. those approved due to EHDC’s housing land shortfall) should be treated as exceptional — not rewarded for non-compliance.
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