Clarity about deliverability

Simon Coop 07 May 2019

In her recent blog, Abbie Connelly examined the implications of the Housing Delivery Test in the South West. This important measure, which was introduced through the revised NPPF, provides a new route to the Presumption in Favour of Sustainable Development, based on an assessment of past delivery against housing requirements. But the long established forward-looking indicator – the requirement to identify and maintain a five-year supply of deliverable sites – remains and, following the shock caused by the St Modwen Court of Appeal judgment[1], a much higher burden of evidence is now required to justify the inclusion of sites within the five-year supply.

Despite nine months having passed since the revised NPPF was introduced, and three key appeal decisions dealing with the matter, it is clear that many LPAs continue to rely on evidence which artificially inflates the supply position by praying-in-aid of the St Modwen judgment. For some this is due to a failure to have updated their evidence whilst others appear to believe that it is business as usual due to the NPPF maintaining the following wording from the original framework:

“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”. (NPPF Glossary definition of deliverability; my emphasis).

Critically, however, the definition of deliverability also states that:

“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.” (NPPF Glossary definition of deliverability; my emphasis).

The Woolpit[2] and Woolmer Green[3] appeal decisions both reject the notion that the St Modwen case remains applicable in the context of the revised NPPF which “goes significantly further than the 2012 Framework” (Woolmer Green, paragraph 30).

The implications of the new approach were summarised in these and the more recent Haslemere[4] appeal decision as follows:

1. Whilst sites with detailed permission (outline and Reserved Matters) are assumed to be deliverable;

2. There is no longer a presumption for the delivery of sites without detailed planning permission; as such,

3. The onus is now on the local planning authority to demonstrate that sites without detailed planning permission will be delivered within the next five years.

Interestingly, whilst the Councils in the Woolmer Green and Haselmere appeals both sought to justify their housing land supply in accordance with the requirements of the revised NPPF, neither of the Inspectors were persuaded that the evidence was sufficient to comply with the new policy approach.

So what would constitute clear evidence regarding the deliverability of sites? The PPG now provides clarity (at Reference ID 3-036-20180913) about the type of evidence that might be included, stating that this might include:

“Any progress being made towards the submission of an application;
“Any progress with site assessment work; and
“Any relevant information about site viability, ownership constraints or infrastructure provision.

“For example:

“A statement of common ground between the local planning authority and the site developer(s) which confirms the developers’ delivery intentions and anticipated start and build-out rates.
“A hybrid planning permission for large sites which links to a planning performance agreement that sets out the timescale for conclusion of reserved matters applications and discharge of conditions”.

As set out above, the NPPF glossary definition of deliverable lists a number of different types of sites that could be included within the five-year supply, subject to the provision of clear evidence. No reference is made to sites within emerging local plans in the glossary definition. In paragraph 33 of the Woolmer Green decision, the Inspector concluded that these cannot be included with the five-year supply:

“This is on the basis that it is for the local plan examination to assess these allocations in the round. In that forum, unlike a s78 inquiry, the [Examination Inspector] has contributions from all of the relevant stakeholders… I consider that as a matter of principle the Category 2 and 3 sites [sites allocated in the emerging Local Plan (2) and sites in the Green Belt allocated in the emerging Local Plan (3)] do not fall within the definition of available and offer a suitable location for development right now.” (my emphasis).

Similarly, in a decision relating to an appeal in Bures Hamlet in Braintree District[5], the Inspector indicated that sites for which a resolution to grant planning permission subject to a Section 106 agreement should also be excluded on the basis that “uncertainty about when such an obligation would be completed could put back a potential start date by months or even years.” (paragraph 62).

The revised NPPF has introduced a number of significant changes in relation to residential development. Whilst the fundamental requirements in respect of housing land supply remain intact, the revisions should be welcomed as a means by which a more rigorous approach to the analysis that underpins the establishment of a five-year supply inclusion of must be followed. If applied properly, it will ensure that the five-year supply will no longer include sites that are unlikely to come forward. This might mean that more authorities find themselves subject to Presumption in Favour of Sustainable Development, but it will represent a critical step towards the objective of “significantly boosting the supply of homes”.

[1] St Modwen v (1) Secretary of State for Communities and Local Government, (2) East Riding of Yorkshire Council, and (3) Save our Ferriby Action Group (2017).

[2] Land at East Side of Green Road, Woolpit, Suffolk (APP/W3520/W/18/3194926) 28 September 2018.

[3] Entech House, London Road, Woolmer Green (APP/C1950/W/17/3190821) 26 October 2018.

[4] Longdene House, Hedgehog Lane, Haslemere (APP/R3650/W/16/3165974) 10 January 2019.

[5] Land off Colchester Road, Bures Hamlet, Essex (APP/Z1510/W/18/3207509) 27 March 2019.

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