Town and country planning – Housing supply – Local plan – Deliverability – Claimant parish council applying for judicial review of defendant local planning authority’s decision to grant planning permission for new homes – Whether defendant unlawfully exercising discretion in assessing deliverability of five-year housing land supply – Whether planning officer’s report misleading planning committee members – Application dismissed
The claimant was the Parish Council for the village of East Bergholt in Suffolk. It challenged a planning decision of the defendant local planning authority to grant three planning permissions for a total of 229 new homes to be built around East Bergholt. The second and fourth interested parties were developers for two of the sites. 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 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 also 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 claimant contended that the defendant had not lawfully exercised its discretion when assessing deliverability and delivery in the context of five-year housing land supplies. Whether or not a site was deliverable, and whether there would be delivery, were matters of planning judgment. But the distinction, and other matters pertinent to the calculation of five-year housing land supplies, was not adequately drawn to the attention of the planning committee. Without that, members could not properly exercise their planning judgment. The planning officer’s report had failed to draw a sufficient distinction between the deliverability and delivery of potential housing sites, with the result that the defendant had erred in its assessment of the five-year housing land supply and its application of the tilted balance in favour of granting permission.
Held: The application was dismissed.
(1) The assessment of housing land supply did not require certainty that the housing sites would actually be developed within that period. However, 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. In July 2018, the NPPF was revised. To be considered deliverable, sites for housing had to be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing would be delivered on the site within five years. Sites that were not major development, and sites with detailed planning permission, had to be considered deliverable until permission expired, unless there was clear evidence that homes would not be delivered within five years (eg they were no longer viable, there was no longer a demand for the type of units or sites had long-term phasing plans). Sites with outline planning permission, permission in principle, allocated in the development plan or identified on a brownfield register should only be considered deliverable where there was clear evidence that housing completions would begin on site within five years: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2016] EWHC 968 (Admin) applied.
(2) The court would not generally interfere with planning officers’ reports on the basis of hypercritical scrutiny or a legalistic analysis on the basis that they were written for democratically elected councillors with local knowledge. Further, it would generally be assumed that when councillors followed the advice in an officer’s report, they did so for the reasons given there. The courts would only interfere when there was a distinct and material defect in the officer’s advice set out in the report. As to identifying a distinct and material defect, the question was whether, on a fair reading of the report as a whole, the officer had materially misled the members on a matter in a material way so that, but for the flawed advice, the committee’s decision would or might have been different: R (on the application of Morge) v Hampshire County Council [2011] UKSC 2 and Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 followed.
(3) It was not unlawful for a local planning authority to want to have confidence that it would be able to robustly defend the judgments it formed on the deliverability of housing sites. The concern about challenges from developers was lawfully taken into account as a factor in decision-making. There was nothing untoward in the officer’s reports and it had not been established that the defendant misinterpreted the guidance in the NPPF as to what could constitute a deliverable site for the purpose of five-year housing land supplies. There was nothing to suggest any unfairness in the defendant taking a risk-averse approach in its calculation of five-year housing land supplies.
Sasha Blackmore and Hannah Gibbs (instructed by Teacher Stern LLP) appeared for the claimant; Michael Bedford QC (instructed by Shared Legal Services, Babergh District Council) appeared for the defendant; Anjoli Foster (instructed by Birketts LLP of Chelmsford) appeared for the second interested party; Richard Wald and Rosie Scott (instructed by Holmes & Hills LLP of Braintree) appeared for the fourth interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of East Bergholt Parish Council) v Babergh District Council
