Town and country planning – Housing supply – Deliverability – Appellant parish council applying for judicial review of respondent local planning authority’s decision to grant planning permission for new homes – High Court dismissing application – Appellants appealing – Whether respondent misdirecting itself on policies in National Planning Policy Framework – Appeal dismissed
The appellant was the Parish Council for the village of East Bergholt in Suffolk. It applied for judicial review of a decision of the respondent local planning authority to grant three planning permissions for a total of 229 new homes around East Bergholt. The second and fourth interested parties were developers. The other interested parties did not participate in the proceedings.
The planning applications were not in accordance with the local development plan and planning permission was granted as a result of the application of the tilted balance under paras 14 and 49 of the National Planning Policy Framework (NPPF). In broad terms, if a local planning authority could not demonstrate a five-year housing land supply, the balance tilted in favour of sustainable development justifying the grant of planning permission, notwithstanding the local plan. Paragraph 33 of the Planning Practice Guidance (PPG) stated that the NPPF required local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing. As part of that, local planning authorities had to consider both the delivery of sites against the forecast trajectory and the deliverability of all the sites in the five-year supply. They had to ensure that they carried out their annual assessment in a robust and timely fashion, based on up-to-date and sound evidence, taking into account the anticipated trajectory of housing delivery, consideration of associated risks and an assessment of the local delivery record. Such assessment, including the evidence used, had to be realistic and made publicly available in an accessible format.
The High Court dismissed the application. The thrust of the appellant’s challenge was that the respondent’s approach to the assessment of housing land supply when it decided to grant planning permission was flawed by its misunderstanding of the concept of “deliverability” in the NPPF, wrongly equating it to “certainty” or even “absolute certainty” of delivery. The judge rejected that argument: [2018] EWHC 3400 (Admin); [2018] PLSCS 220. The appellant appealed.
Held: The appeal was dismissed.
(1) The decision of the court in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2016] EWHC 968 (Admin); [2017] PLSCS 196 demonstrated that the assessment of deliverability of sites under the policy in para 47 of the NPPF was replete with planning judgment and had to be sensitive to the facts. That might be said, in particular, of the question of “achievability”: whether there was a realistic prospect of housing being delivered on a site within five years. A realistic prospect was a broad concept of policy, which gave ample scope for a decision-maker’s reasonable planning judgment on the likelihood of development proceeding on a site within five years, a predictive judgment on future events that were inevitably not certain. The court recognised the range of legitimate planning judgment available to the decision-maker when considering whether sites had a realistic prospect of development in the five-year period. The policy was not prescriptive. It did not lay down any fixed method for applying the test of deliverability to be used in every case. A realistic prospect was not equated to any specific level of likelihood. Subject to that, and to the further relevant guidance in the PPG, the policy left the assessment of a realistic prospect to the decision-maker’s own planning judgment, which the court would only undo on conventional public law grounds. It was not for the court to stipulate how firm a prospect had to be if it was to be realistic.
(2) The policy did not prevent a decision-maker reasonably taking the view, as a matter of planning judgment, that a particular site or sites on which it was not certain or confident that development would occur within five years should be excluded from the five-year supply of housing land. The latitude in the policy itself was also reflected in the relevant guidance in the PPG. It was clear that the policy in para 47, and the PPG guidance upon it, accommodated different views on a realistic prospect of delivery. Achievability was only one of four elements that together went to the question of deliverability, the other three being availability, suitability and viability. All four elements had to be present if a site was to be regarded as deliverable and entailed the exercise of planning judgment. In those circumstances, despite the existence of a strong and realistic prospect of the site’s development, the site could properly be judged by the authority not to qualify as deliverable under the policy.
(3) In the present case, the assessment of the five-year housing land supply underlying the officer’s advice to the planning committee was not at odds with the approach endorsed by the court in St Modwen Developments Ltd. The appellant had not demonstrated a failure by the respondent to understand government policy in para 47, or guidance in the PPG, or a misapplication of that policy and guidance, or an exercise of planning judgment outside the generous scope that public law permitted. The respondent had made its decisions to grant planning permission lawfully, with a true understanding of relevant policy and on the strength of material land use considerations; it did not resort to considerations that were immaterial. There was no evidence of an approach whose aim was to avoid for the respondent the financial burden and risk of appeals, rather than one that would produce a robust assessment in accordance with national policy and guidance. National policy and guidance on the five-year housing land supply was necessarily a material consideration in the respondent’s decisions on the three proposals, being a consideration related to the use and development of land. Essential to that national policy and guidance was the imperative of a robust assessment which was, by its nature, an assessment likely to reduce the respondent’s financial burden and risk. The requirement in national policy for such an assessment was effectively reinforced by the guidance on awards of costs in the PPG.
Sasha Blackmore (instructed by Teacher Stern LLP) appeared for the appellant; Michael Bedford QC (instructed by Shared Legal Services, Babergh District Council) appeared for the respondent; The interested parties did not appear and were not represented.
Eileen O’Grady, barrister