The implications of the Court of Appeal's 'deliverable' sites ruling

A court ruling on the policy test for establishing the likelihood of identified sites actually being developed should give councils a firmer basis for showing a five-year supply, experts have suggested.

London's Royal Courts of Justice
London's Royal Courts of Justice

Last month, the Court of Appeal confirmed that a "realistic prospect" of a site coming forward within the required timeframe will be sufficient to meet the housing deliverability test set by national planning policy. The appeal judges, led by Lord Justice Lindblom, endorsed Mr Justice Ouseley's High Court ruling last year on the test laid down in the National Planning Policy Framework (NPPF).

Paragraph 47(2) of the NPPF requires planning authorities to show a supply of "specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements". A footnote defines "deliverable" as achievable, "with a realistic prospect that housing will be delivered within five years". But St Modwen Developments, which is now seeking to have the issue aired in the Supreme Court, argues that this formula sets the bar too low and that delivery of identified sites should be "probable" within five years if the test is to have any force in boosting supply.

The developer had challenged communities secretary Greg's Clark's 2015 decision, made in line with an inquiry inspector's advice, that East Riding Council could show an adequate pipeline of sites when he rejected an appeal for up to 510 homes and other uses on an allocated employment site at Melton Park, near North Ferriby on Humberside (DCS Number 200-003-782). The scheme has been opposed by local campaign group, Save Our Ferriby Action Group. In refusing permission, the secretary of state held that the developers had shown no pressing need to release additional sites to meet the council's housing target.

Upholding the decision, Lindblom said that, to be deliverable, a site has to be capable of being delivered within five years, but it does not need to be certain or probable that the site actually will be delivered within five years. He added: "The fact that a particular site is capable of being delivered within five years does not mean that it necessarily will be. For various reasons, the landowner or housebuilder may choose to hold the site back. Local planning authorities do not control the housing market. NPPF policy recognises that."

Nicky Linihan, housing delivery specialist at the Planning Officers Society, said the judgment provides "helpful clarification" on how councils and developers should apply this part of the NPPF. She also welcomed its recognition that local planning authorities do not control the market. "They are doing all they can to facilitate housebuilding, but other factors beyond their control may mean that sites don't come forward," she said. Philip Allin, an associate director at consultancy Boyer, said a lot of the judgment was common sense: "There has to be some leeway because there are so many variables in bringing identified sites forward," he said.

Andrew Fraser-Urquhart QC, a barrister at Francis Taylor Building, said the judgment "sends a signal that 'delivery' means exactly what the NPPF says it means and efforts to elevate it into something more certain won't wash". He said: "It provides encouragement to local authorities, in that they can have a slightly firmer basis for their five-year supply calculations. As more local plans are adopted, more and more authorities are getting into a definitive position on their five-year supply and this ruling will probably emphasise that trend."

Derek Stebbing, a consultant with advisory firm Intelligent Plans and Examinations, said the judgment is "pivotal in the forensic way the court dissected the meaning of delivery, deliverability and other phraseology" in paragraph 47. "It makes it clear that deliverability is not the same thing as delivery. Many authorities will take the view that their planning processes for delivering homes have been vindicated by this ruling," he said.

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