The Court of Appeal has confirmed a common sense approach to interpreting National Planning Policy Framework (NPPF) housing supply policy in St Modwen Developments Ltd v Secretary of State for Communities and Local Government & Others [2017] EWCA Civ 1643.
The appellant developer appealed against a decision upholding the refusal of planning permission for significant housing development on allocated employment land. The meaning of “a supply of specific deliverable sites” in NPPF 47 was in question because the contribution to the supply of housing (and the adequacy of local supply) was a main issue. The scheme breached the development plan but some of its policies were out of date. The NPPF 14 tilted presumption applied. The authority’s supply trajectory suggested a build rate three times greater than achieved locally. In considering the overall weight to be given to scheme benefits, the inspector found no significant HLS shortfall (and so no beneficial contribution to undersupply).
The appellant had sought to exclude any windfall permissions from the supply calculation. It claimed that the inspector and the first instance judge had misinterpreted NPPF 47(2). It also claimed that no legally adequate reasons had been given as to how the authority’s five-year housing supply figures could be reconciled with its past delivery.
The Court of Appeal upheld Ouseley J’s judgment that “deliverability” is an assessment of the likelihood (not certainty) that housing will be delivered in the five-year period. There is a clear distinction in NPPF 47(2) and (3) between identifying a supply of housing land that the market could feasibly deliver versus demonstrating that the “expected rate of housing delivery” in its housing trajectory is sound. Authorities cannot rely on sites with “no realistic prospect of being developed within the five-year period” (following Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37), but equally are not required to demonstrate the probability of the market picking up the baton.
The inspector had not been asked to address the point as a main issue and had rejected the delivery concerns as a matter of planning judgment, based on the new plan and its policies and the fact that it accommodated a 20% supply buffer to account for past undersupply.
The judgment illustrates the importance of testing deliverability concerns on allocated sites at the Local Plan examination stage and approaching the NPPF with common sense. If, as recognised in Ousley’s J’s judgment “the solution to a problem of delivery” on deliverable sites “is not an increase in the supply of sites which are capable of delivery”, it is presumably still incumbent on government at all levels to consider how best it can use its powers to achieve that goal.
Roy Pinnock is a partner in the planning and public law team at Dentons
