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Deliverability: Expanding our horizons (closed v open lists)
Ever since the new definition of ‘deliverable’ (for sites to be included within a five-year housing land supply) was first published back in the July 2018 NPPF one point of debate has been around whether the definition is ‘open’ or ‘closed’. The revised NPPF published in February 2019, which updated the definition, didn’t clear things either. It defines deliverable as: “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 ambiguity comes from the two lists of sites: can sites not specifically listed in the definition be capable of being ‘deliverable’? Or can any site be deliverable as long as it is available now, suitable now and achievable with a ‘realistic prospect’ of delivery? Well we may finally have an answer to this new age question – at least in terms of what the Secretary of State thinks – as announced by Cornerstone Barristers. The relevant Consent Order can be found here. Context: Open v Closed A ‘closed list’ interpretation would say sites not listed in the definition should not be capable of being deliverable. If the SoS wanted other sites to be deliverable these would be listed. If the SoS wanted these to be deliverable, then he had the opportunity to add sites to the list (in updating the NPPF in February 2019) and chose not to do so. The main decision the ‘closed list’ interpretation stems from is the ‘Woolmer Green’ case in Welwyn Hatfield from October 2018[1] but various Inspectors, including as recently as April 2020 (‘Land north of Nine Mile Road’[2]) have determined the lists to be closed. The updates to the PPG did also seem to point us in this direction as I discussed in a previous blog. An ‘open list’ interpretation would say that the test of deliverability is that a site needs to be available now, suitable now, and be achievable with a realistic prospect that housing will be delivered on the site within five years (potentially backed up with clear evidence). As time has gone on, the weight of appeal decisions has seemed to go in this direction[3] – most pertinent being the recent Barbrook Lane recovered appeal[4]. The Willows Northamptonshire The emergence of the position of the Secretary of State on this debate appears to stem from an otherwise unassuming appeal in East Northamptonshire where an Inspector allowed an appeal, granting outline permission for four units in the town of Thrapston (ref. 3232099). In coming to a decision regarding the LPAs Five-Year Land Supply the Inspector stated: “The Council has recently published an Annual Position Statement approved by its Planning Policy Committee that suggests the housing supply over the relevant period is 2660 homes. This would amount to a 6.03-year supply against the housing requirement. The appellant has reviewed this and is of the view that the supply is nearer to 1269 homes, which is around 2.88 years. Much of the discrepancy can be put down to the Council not adhering to the definition of what constitutes a deliverable site in the Framework. The Council has included sites allocated in the emerging Local Plan (around 549 homes) and unallocated unapproved development schemes that are likely to come forward on previously developed land in urban areas, two of which were discounted by the Council from the brownfield register (around 225 homes). This is a significantly flawed approach as the definition of ‘deliverable’ in the Framework is a closed list. As such, at least 774 homes can immediately be removed from the Council’s housing land supply. This alone means the Council is unable to demonstrate a five-year housing land supply, the supply being in the region of 4.28 years.” (IR 35 – 36) The Consent Order quashing the decision states: "The Defendant has carefully considered the Inspector’s decision and the Claimant’s Statement of Facts and Grounds and Reply, and the evidence served in support. He concedes that he erred in his interpretation of the definition of deliverable within the glossary of the National Planning Policy Framework (“NPPF”) as a ‘closed list’. It is not. The proper interpretation of the definition is that any site which can be shown to 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’ will meet the definition; and that the examples given in categories (a) and (b) are not exhaustive of all the categories of site which are capable of meeting that definition. Whether a site does or does not meet the definition is a matter of planning judgment on the evidence available” So, the lists are open. What does this mean for demonstrating a 5YHLS? The SoS’s clarification means that any site not listed in Category A (i.e. with a detailed permission or non-major development) should, in effect, now be considered as Category B, requiring corresponding ‘clear evidence’ to be considered deliverable. This means that Category A remains closed, while Category B is now open. The question arises as to what sites that previously may not have been considered deliverable, now could be: 1. Sites with a resolution to grant subject to the signing of a S106? If a Council is digging around for extra supply this seems the most obvious place to start. These are sites that are – potentially - closest to having a planning permission and are therefore closest to the examples of sites already listed in the definition. However, we do know that these sites can hang around for months (sometimes years) while negotiations take place to agree a S106 (as mused previously by the Bures Hamlet Inspector[5]). There would need to be clear evidence on the position with the s.106 negotiations. What is holding it up? How close are matters to resolution? Sites with a resolution to grant a full permission are also more likely to be found to be deliverable (subject to their being clear evidence) than outline sites, given the need to secure further reserved matters approvals. We know from Start to Finish that the average period for sites above 500 units to get from outline permission to first completion is c.three years. Therefore, the added delay from signing a S106 might push a large outline scheme out of the five-year period. 2. Sites with an emerging allocation (but no permission)? Here things get trickier. Demonstrating emerging allocations as deliverable will likely turn on how far down the road is the emerging local plan, whether the Inspector has provided any initial positive conclusions potentially referencing the allocations, and potentially whether an application for the site is pending determination being twin-tracked with the Local Plan. But Local Plan delays seem almost inevitable and plans failing isn’t so uncommon (think Sevenoaks or Uttlesford). An LPA would perhaps not want a 5YHLS position reliant on emerging allocations given the risks. In many cases it will also be very difficult to argue these sites are ‘suitable now’. 3. Pre-application sites? Unlikely. Preparing and arguing evidence in support of these sites that is found to be ‘clear’ will generally be a tall order. The pre-applicant may not pursue the scheme, the size of the scheme isn’t fixed, a future application may be refused (given it is not allocated, compliance with the development plan may not be clear), and so may a future appeal. While these sites can be deliverable, the number of situations where such sites could pass the threshold seems likely to be limited. 4. Unallocated sites with no pre-application, emerging allocation, or identification on a brownfield register? Almost certainly not. This would likely be stretching the open list a bit far. While details of an application in the works for such a site could be shared, we come to the same stumbling block as pre-application sites. In all but the rarest case it will be difficult to provide the level of detail and clarity to a decision-maker that a site with no planning status could be demonstrated as having a ‘realistic prospect’ of delivery. Summary In summary, where there was once ambiguity, there is now clarity as to the Secretary of State’s position (although it is of note that it is not a legal judgment). ‘Deliverable’ is open. But in reality, how ‘open’ will it become? The revised definition of deliverable in the 2019 NPPF is clearly a higher bar test to its predecessor in the 2012 NPPF. The changes meant that LPAs could no longer rely on sites inherently less certain of delivering in the five-year period (i.e. sites with an allocation or outline permission) without there being clear evidence of completions taking place. In this context, while the definition is now ‘open’ the ‘clear evidence’ test hasn’t gone away: 'deliverable' for sites without detailed approvals remains a high bar. Therefore, while the types of sites that can be deliverable may have expanded, this clarification should not be seen as a total liberation. Providing the evidence that is ‘clear’ for sites that have no - or very limited - planning status will likely be a bridge too far in all but the most specific cases. [1] The Woolmer Green decision (ref. 3190821)[2] The Nine Mile Road decision (ref 3238084)[3] For example, the North Worcestershire Golf Club decision (ref. 3192918); the South of Cox Green Road decision (ref. 3227970); and the Grange Road decision (ref. 3201067)[4] The Barbrook Lane decision (ref. 3223010) [5] The Bures Hamlet decision (ref. 3207509)


The X-Fylde’s (A postscript to Season 1): The APS Confirmation that always was
In February my blog reviewed the first round (or shall we say Season 1?) of Annual Position Statements (‘APS’) – a new annual process introduced by the 2018 NPPF whereby LPAs can ‘confirm’ (i.e. fix) a five-year housing land supply (‘5YHLS’) position. The cliff hanger at the end of ‘Season 1’ was undoubtedly the case of Fylde Borough Council. Having reviewed the Council’s APS, the Inspector had concluded Fylde could not demonstrate a 5YHLS and thus its supply could not be fixed. This hinged on the APS Inspector’s surprising approach of applying the so-called ‘Sedgefield’ method of calculating the backlog rather than the ‘Liverpool’ approach only recently endorsed by Fylde’s Local Plan Inspector[1]. This change alone resulted in Fylde being unable to demonstrate a 5YHLS. The Council, much aggrieved, chose to legally challenge the APS Inspector’s conclusion. Only slightly ahead ahead of the next round of APS submissions, we have our conclusion to this most thrilling of tales. On April Fools’ Day, the Secretary of State consented to a High Court Order that quashed the original APS Inspector’s January 2020 report. The Schedule to the Consent Order sets out the position: “The Inspector concluded, on the evidence, that the Claimant was unable to demonstrate a five-year supply of deliverable housing land as at 1 April 2019. That finding turned on the Inspector’s decision that the Sedgefield methodology should be used to address housing shortfall when calculating the Claimant’s housing requirement, as opposed to the Liverpool methodology endorsed by the Local Plan Inspector. He was not entitled to use a different housing requirement from that set out in the adopted Policy of the Local Plan. Paragraph 73 of the NPPF provides that local planning authorities “should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old”. Consequently, NPPF para. 73 defines the “housing requirement” against which an authority’s five year housing land supply should be assessed i.e. it is the housing requirement set out in adopted strategic policies where (as in the present case) those policies are less than five years old Consequently, and for the above reason, the Inspector erred in law by using a housing requirement that differed from the minimum housing requirement in Policy H1 of the Claimant’s recently adopted Local Plan” (our emphasis) The order is unequivocal. One cannot choose to use a different housing requirement to that which has been adopted in a sound, up to date Local Plan. The clarity of the Consent Order, the fact the Secretary of State didn’t defend the Inspector’s approach, and that this error was made on the first round of a brand new process (and with only three Councils submitting themselves for consideration) – does make one wonder how the Inspector’s rather bold approach to Fylde passed through the net. A fresh APS Inspector’s report has now been published (dated 6th May 2020) which unsurprisingly finds that Fylde can now indeed demonstrate a 5YHLS (5.1 years) on the basis of using the ‘Liverpool’ method to calculate the Council’s backlog. So what does this mean? Well, Fylde now has its 5YHLS confirmed until the 31st October 2020 and this can’t be challenged in appeals ahead of this date. Thus, two out of the three LPAs that submitted an APS in the first round of submissions have now had their 5YHLS supply confirmed[2]: trebles all round. However, this postscript to Season 1 of the APS saga will soon be superseded. The next APS round has already begun and Fylde has signalled to PINS its intention to submit a new APS and will need to do so to PINS by 31st July (along with five other LPAs: Milton Keynes, South Kesteven, Stockton on Tees, Sunderland and Wyre). Fylde will thus either have its supply confirmed once again in October of this year (assuming PINS meets the deadline) or alternatively an Inspector could find it can no longer demonstrate a 5YHLS on the basis of its new APS. In the event of the latter, the Council will lose the ability to submit an APS until such time as it adopts a new local plan[3]. Fylde had demonstrated a 5YHLS by the barest of margins in its just confirmed position this time round (a surplus of just 35 units); has that position improved or worsened in 12 months? Fylde may have bought itself five months of 5YHLS safety, but it still may yet be written out of Season 2. [1] Under ‘Sedgefield’ any backlog in housing delivery is to be met within the 5YHLS period, Under ‘Liverpool’ the backlog is spread over a longer timescale, typically to the end of the plan period. [2] The third – Mid Sussex – fell at the first fence, because its Local Plan was not “recently adopted” as defined by NPPF Footnote 38[3] The two options for confirming a supply is through either a ‘recently adopted’ 2019 NPPF-assessed plan or through a subsequent APS (PPG ID: 68-004). The guidance states that to submit an APS the LPA must either have (ID: 68-013) a recently adopted plan (2019 or 2012 NPPF assessed) or a confirmed land supply following a previous APS. On this reading, any LPA that is found not to have a 5YHLS through the APS process, or simply fails to submit an APS when its local plan (2012 or 2019 assessed) is ‘recently adopted’, loses the ability to confirm its supply until it adopts a new local plan.