Town and country planning – Housing supply – National planning policy framework – Claimant appealing against decision to uphold refusal of planning permission – Whether inspector misinterpreting national planning policy on housing supply – Whether inspector erring in approach to housing strategy – Whether inspector failing to take account of housing delivery record – Appeal dismissed
The appellant appealed against an order of Ouseley J, dismissing its application under section 288 of the Town and Country Planning Act 1990 challenging the decisions of the first respondent secretary of state to dismiss two appeals under section 78 of the 1990 Act against the refusal of planning permission by the second respondent local authority, for a large development of new housing on land at Brickyard Lane, Melton Park, about 13 kilometres to the west of Hull. The third respondent was an objector to the proposals: [2016] EWHC 968 (Admin).
Much of the appeal site had been allocated for employment purposes in the development plan and in an emerging local plan. The second respondents refused to grant planning permission for the proposed development and that decision was upheld by a planning inspector appointed by the first respondent. The inspector concluded that there was no dispute that the proposals conflicted with the adopted development plan and the emerging local plan but gave the proposals the benefit of the presumption in favour of sustainable development in the National Planning Policy Framework (NPPF). She concluded that the second respondents had demonstrated the existence of a five-year supply of housing land and found that the planning case for housing had not been established. The first respondent upheld that decision.
The appellant contended that the inspector had: (i) misinterpreted or misapplied government policy for the supply of housing in para 47 of the NPPF by failing to carry out an assessment of what housing would probably be delivered in the five-year period; (ii) erred in her approach to the second respondents’ housing trajectory; and (iii) erred by failing to take account of the second respondents’ record of housing delivery.
Held: The appeal was dismissed.
(1) Paragraph 47 did not require an assessment of what would probably be delivered in terms of the supply of housing land. The fatal defect of such an argument lay in its misreading of the policy in para 47. It missed the essential distinction between the concept of deliverability, in the sense in which it was used in the policy, and the concept of an “expected rate of delivery”. Deliverability was not the same thing as delivery. The fact that a particular site was capable of being delivered within five years did not mean that it necessarily would be. For various financial and commercial reasons, the landowner or housebuilder might choose to hold the site back. NPPF policy recognised that local planning authorities did not control the housing market.
The word “deliverable” was defined in a footnote in the Planning Policy Guidance. The first part of the definition contained four elements: that the sites in question should be “available now”; “offer a suitable location for development now”; be “achievable with a realistic prospect that housing will be delivered on the site within five years”; and “development of the site is viable”. Each of those considerations went to a site’s capability of being delivered within five years, not to the certainty or probability that it actually would be. The second part of the definition referred to “[sites] with planning permission”. That clearly implied that, to be considered deliverable and included within the five-year supply, a site did not necessarily have to have planning permission already granted for housing development on it. Sites might be included in the five-year supply if the likelihood of housing being delivered on them within the five-year period was no greater than a “realistic prospect”, the third element of the definition. That did not mean that for a site properly to be regarded as “deliverable” it had necessarily to be certain or probable that housing would in fact be delivered upon it, or delivered to the fullest extent possible, within five years. The inspector had not misunderstood the NPPF policy. She was clearly alive to the distinction between deliverability and actual delivery, and had well in mind that deliverability entailed a realistic prospect of the site being delivered.
(2) Having concluded that the second respondents had demonstrated the existence of a five-year supply of housing land, the inspector went on to consider the credibility of the housing supply figures presented on either side. As her conclusions showed, she did not accept that the second respondents’ housing trajectory disproved its case on supply. That was a planning judgment she could properly make on the evidence and submissions before her. In making it, she demonstrably had regard to the housing trajectory as a material consideration; she referred to it directly and she gave it the weight she judged to be right in view of its status and role.
(3) As the inspector recognised, the evidence on the second respondents’ record of housing delivery, like the evidence on its housing trajectory, went to the credibility and reliability of its figures for the supply of housing land. That question was sufficiently and lawfully addressed by the inspector and the reasons she gave were legally good.
Christopher Young and James Corbet Burcher (instructed by Irwin Mitchell LLP) appeared for the appellant; Richard Honey (instructed by Government Legal Department) appeared for the first respondent; Paul Tucker QC and Freddie Humphreys (instructed by East Riding of Yorkshire Council) appeared for the second respondents; Emma Reid-Chalmers (pro bono instructed by Direct Access) appeared for the third respondent.
Eileen O’Grady, barrister
