R (on the application of East Bergholt Parish Council) v Babergh District Council

Hearing date: 18 July 2019

Judgment Approved by the court for handing down (subject to editorial corrections)

Introduction

The main question in this appeal is whether a local planning authority, when assessing the five-year supply of housing land, misdirected itself on the relevant policies in the National Planning Policy Framework (“the NPPF”) published by the Government in March 2012. It is not the first case of its kind. And no new issue of law is involved.

The appellant, East Bergholt Parish Council, appeals against the order dated 7 December 2018 of Sir Ross Cranston, sitting as a judge of the High Court, by which he dismissed its claim for judicial review of three grants of planning permission by the respondent, Babergh District Council, for housing development on sites in East Bergholt. In total, the three developments would provide up to 229 new dwellings: 10 for residents over the age of 55 on a site at Hadleigh Road, for which planning permission was granted on 10 November 2017; 144 on a site at Moores Lane, for which permission was granted on 23 November 2017; and up to 75 on a site at Heath Road, for which permission was granted on 9 February 2018. The district council's Planning Committee resolved to approve all three proposals on 2 August 2017. In each case the proposal did not accord with the development plan, which included the Babergh Core Strategy, adopted by the district council in February 2014, and the East Bergholt Neighbourhood Plan, made in September 2016. But the district council concluded that the five-year housing land supply required under government policy in paragraph 47 of the NPPF did not exist, so that, under the policy in paragraph 49, the policy for the “presumption in favour of sustainable development” in paragraph 14 was engaged and a decision to grant planning permission was justified.

The thrust of the parish council's challenge is that the district council's approach to the assessment of housing land supply when it decided to grant planning permission for these three developments, was flawed by its misunderstanding of the concept of “deliverability” in the NPPF, wrongly equating it to “certainty” or even “absolute certainty” of delivery. A further complaint is that in approving these developments the district council was influenced by the potential cost of opposing subsequent appeals if it refused permission. These grounds were rejected by the judge. Permission to appeal was granted by Singh L.J. on 18 February 2019, on two of the four grounds in the appellant's notice – grounds 1 and 2.

The issues in the appeal

Two main issues arise. First, did the district council err in law in its assessment of housing land supply, misinterpreting and misapplying NPPF policy, and including only sites on which it was certain, or absolutely certain, that housing would be delivered within five years – an approach said to be contrary to the decision of this court in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2018] P.T.S.R. 746 (ground 1 and ground 2 in part, and the district council's respondent's notice)? And second, did it improperly take into account the possible financial consequences for itself of fighting appeals against the refusal of planning permission (ground 2 in part).

The policy in paragraph 47 of the NPPF

We are concerned only with the policies of the NPPF as they were at the time of the decisions under challenge, in August 2017. The NPPF has, however, twice been revised since then, in July 2018 and again in February 2019.

Paragraph 47 of the NPPF stated:

“47. To boost significantly the supply of housing, local planning authorities should:

…

• identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;

• identify a supply of specific, developable sites or broad locations for growth, for years 6–10 and, where possible, for years 11–15;

…”.

Footnote 11 explained the meaning of the word “deliverable”:

“To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.”

Footnote 12 said that “[to] be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available and could be viably developed at the point envisaged”.

The policy in paragraph 49 stated that “[housing] applications should be considered in the context of the presumption in favour of sustainable development”, and that “[relevant] policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. The policy in paragraph 14 envisaged the “presumption in favour of sustainable development” operating “where the development plan is … out-of-date”, subject to two exceptions, one of which was that “any adverse impacts of [approving the proposal] would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole”.

The relevant policy in paragraph 47 has remained substantially unchanged in the subsequent revisions of the NPPF. The definition of a “deliverable” site was changed in both revisions. The definition given in the glossary in Annex 2 to the 2019 version states:

“To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:

a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).

b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.”

The guidance in the Planning Practice Guidance (“the PPG”)

The policy in paragraph 47 of the NPPF was amplified in the PPG, first published by the Government in March 2014 and later updated. I shall consider the guidance as it was at the time of the district council's decisions.

Paragraph 3-019-20140306 of the PPG explained the factors to be considered when assessing the “suitability” of sites for development. It said that “[sites] in existing development plans or with planning permission will generally be considered suitable for development although it may be necessary to assess whether circumstances have changed which would alter their suitability”.

Paragraph 3-030-20140306 advised that the starting point for calculating the five-year housing land supply should be “the Housing requirement figures in up-to-date adopted Local Plans”, but went on to say that “[where] evidence in Local Plans has become outdated and policies in emerging plans are not yet capable of carrying significant weight, information provided in the latest full assessment of housing needs should be considered”. Paragraph 3-031-20140306, under the heading “What constitutes a ‘deliverable site’ in the context of housing policy?”, said:

“Deliverable sites for housing could include those that are allocated for housing in the development plan and sites with planning permission (outline or full that have not been implemented) unless there is clear evidence that schemes will not be implemented within five years.

However, planning permission or allocation in a development plan is not a prerequisite for a site being deliverable in terms of the 5-year supply. Local planning authorities will need to provide robust, up to date evidence...