Modification is suggested to Policy P5:
Either omit the word ‘enhancing’:
“3 - New housing will be supported on windfall sites in accessible locations where they contribute towards meeting borough-wide housing needs and towards enhancing local character and distinctiveness….”
Or add an additional definition:
“3 - New housing will be supported on windfall sites in accessible locations where they contribute towards meeting borough-wide housing needs and towards enhancing local character and distinctiveness including through that housing provision.

Policy P5 includes a test for the development of windfall sites:
On behalf of our Client Mr A Gynla we are instructed to make representations in connection with the Solihull Local Plan Review 2020. It is submitted that Policy P5 paragraph 3 is unsound.
Paragraph 3 of the Plan states that ‘New housing will be supported on windfall sites in accessible locations where they contribute towards meeting borough-wide housing needs and towards enhancing local character and distinctiveness. Unless there are exceptional circumstances, new housing will not be permitted in locations where accessibility to employment, centres and a range of services and facilities is poor.’
It is noted that the policy was found sound in the 2013 examination, however, in January 2020 in the matter of high court case Ref at the Queens Bench Division of the High Court Ref: CO/4467/2019, on the application of Fiona Elizabeth Somerville v Solihull MBC, the issue of ‘enhancing’ as included within Policy P5 was the subject of that case.
At the heart of that case was the issue as to whether or not development in residential back gardens could be regarded as ‘enhancing’. The gardens were long but well-maintained and it was argued by the objector’s QC MR R. KIMBLIN that any form of development or building whatsoever could not, on a common-sense interpretation of that word, be regarded as an enhancing.On behalf of our Client Mr A Gnyla, it is submitted that the inclusion of the word ‘enhancing’ in the policy is too subjective.
The tests of soundness are set out in the National Planning Policy Framework (NPPF) (para 35):
Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are ‘sound’ if they are:
b) Justified – an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;
c) Effective – deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and
d) Consistent with national policy – enabling the delivery of sustain
In terms of NPPF paragraph 35 the criterial above are considered below:
b) Justified - the inclusion of the word ‘enhancing’ is unjustified and, therefore, unsound , as it introduces an unnecessarily subjective test that could frustrate the delivery of windfall sites. As it did in the case referred to, for some 12 months. The delivery of development on windfall sites is crucial to providing the housing numbers required and expressed within the Solihull Local Plan Review 2020.
c) Effective – if windfall sites across Solihull Borough are limited or delayed, then those housing numbers to be provided from windfall sites will be required to be made up elsewhere. Few other Local Authorities include the word ‘enhancing’ as an additional test and only Solihull in the Greater Birmingham Housing Market Area includes this. The enhancing test makes Solihull vulnerable to a similar challenge in the future as well as putting the Borough at a disadvantage by comparison. This could result in increased pressure to develop on green field and Green Belt sites to the detriment of the Council, as well as adding a delay through the necessity of identifying such alternative sites, and finally resulting in pressure on adjacent Local Authorities to provide for the shortfall. The delays referred to would affect the deliverability or timing of sites
d) – Consistent with NPPF – does not impose such a subjective test on the development of backland or windfall sites.