Interpreting the delivery of housing land supply

Posted on: January 3rd, 2020

A recent case has seen the Court of Appeal dismiss a judicial review challenge to the grant of a planning permission for residential development, but what does this mean for Local Planning Authorities and councils?

In the case (R (on the application of East Bergholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200), a council’s planning committee simultaneously resolved to approve three planning applications for up to 229 plots, despite the fact they didn’t accord with the authority’s adopted development plan.

The council’s reasoning for approving the applications was that the five year housing land supply required under paragraph 47 of the NPPF didn’t exist, so that, under NPPF paragraph 49, the policy for the ‘presumption in favour of sustainable development’ in NPPF paragraph 14 was applicable, and a decision to grant planning permission was warranted.

The Parish Council judicially reviewed the council’s decision as it felt that the council had misunderstood the concept of ‘deliverability’ when assessing the housing land supply in the NPPF.

The court dismissed the challenge by confirming that the Local Planning Authority’s approach in assessing housing land supply under the National Planning Policy Framework (“NPPF”) was correct in that sites can be included in the five year supply of housing land, even if they aren’t certain of delivery.

The Court held it is down to decision makers, such as local planning authorities, to use their own reasonable planning judgement to determine the scope of what is deliverable, even if they are not certain of delivery.

Implications

The Court of Appeal’s decision reaffirms two important aspects of the assessment by a Local Planning Authority of the five year housing land supply under the NPPF.

Firstly, the degree of confidence required for a site to be considered ‘deliverable’ is for the Local Planning Authority to decide within the bounds of reasonable planning judgement, especially as there is no set test in the NPPF for determining what is and what isn’t deliverable.

Secondly, the decision helps clarify the interpretation of ‘deliverability’ by confirming that sites can be included in a Local Planning Authority’s five-year supply even if they aren’t certain of delivery. For example, as a result of this case, a site without planning permission or a development plan allocation can still be classed as ‘suitable’ for delivery if it had a resolution to grant permission subject to a Section 106 planning obligation.

Overall, this case helps establish that a court won’t look to intrude on the assessment by a Local Planning Authority’s of the five year housing land supply under the NPPF; it will only intervene where they have failed to understand relevant policy.

It’s worth noting that the Local Planning Authority’s decision in this case was made using the 2012 version of the NPPF, but the court did allude to this and that their decision will also apply to the 2018 and 2019 revisions of the NPPF.

This isn’t the first case of its kind and certainly won’t be the last. The court’s interpretation of planning policy does not generate new law or principles; it is just a reflection of their current stance.

For more information on planning permission and construction law, please contact Ben Loosemore in our Commercial Property team or fill in the enquiry form.