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The Woolpit and Woolmer Green 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 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:
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, 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”.