Last month, the Court of Appeal ruled in favour of a Suffolk district council in a dispute with one of its parish councils. At the heart of the case was how Babergh District Council should have assessed the ‘deliverability’ of sites in its housing land supply.
In a council meeting in August 2017, Babergh granted permission for three residential developments totalling 229 homes within the boundaries of East Bergholt Parish Council, despite knowing that none of the schemes accorded with its local development plan. However, the authority had concluded that it only had a sufficient supply of housing sites for three years, rather than the five years required by the National Planning Policy Framework (NPPF), and therefore that the presumption in favour of sustainable development applied.
In the Court of Appeal, East Bergholt Parish Council argued that Babergh had only included those sites that were "certain" or "absolutely certain" of being delivered in its assessment of its housing land supply. It said this was a misinterpretation of the NPPF’s definition of deliverability. But Lord Justice Lindblom disagreed. "Put simply, the degree of confidence required in the 'deliverability' of sites is for the decision-maker to decide, within the bounds of reasonable planning judgment," he said.
Planning understands that the parish council is seeking permission to take the case to Supreme Court. But whatever the outcome, legal experts believe that it will have limited wider impact due to the fact that the definition of deliverability under consideration was that contained in the 2012 version of the NPPF. "While the concept of deliverability remains in the 2019 framework, the definition is significantly different, with more guidance provided as to how it should be interpreted," said planning lawyer Trevor Ivory, UK head of planning at DLA Piper.
The glossary to the current NPPF 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." It then goes on to provide further detail on what constitutes a deliverable site.
Planning barrister Martha Grekos said: "The onus is clearly on the local planning authority to justify the inclusion of sites. Subsequent appeal decisions after the revised NPPF came into force have confirmed that this test goes significantly further than the 2012 NPPF and raises the bar for the test of deliverability."
Despite the fact that the looser 2012 definition has been superseded, Ivory said the Babergh case was significant in that it underlined the fact that planning authorities have some latitude in exercising their planning judgement when it comes to the ‘realistic prospect’ test, although he added a caveat. "The exercise of that judgment now needs to be exercised in the context of the new and more prescriptive definition of deliverability, which introduces a closed list of the types of sites that can be considered deliverable and so included in a council’s five-year land supply," he said.
Michael Bedford QC of Cornerstone Barristers, who represented Babergh Council in the case, said the ruling "is yet another instance of the court re-affirming the breadth of legitimate planning judgements and the limited role of the courts in legal challenges to those judgements".
"The principal finding was that the council acted lawfully in its application of the NPPF policy and was found to have exercised its planning judgment rationally," said Ben Simpson, a director at consultancy Boyer. "The wider implications of the judgment is to reinforce the court’s unwillingness to stray into the realms of planning judgement."
This has implications for developers, Simpson added. "They need to make reasoned and evidenced arguments as to why certain sites may or may not be deliverable," he said, "and they cannot readily expect the courts to intervene in this area of decision-making which involves the exercise of planning judgment."
A separate part of the ruling concerned the accusation that Babergh Council had improperly taken into account the possible financial consequences of fighting appeals in its decision to grant the three consents. The judge found that this had not been the case, but took the opportunity to underline the fact that such concerns are not legitimate for decision-makers to take into account. "They should exercise their planning judgement in the application of policy and should not let concerns about potential costs associated with decisions affect that judgement," said Simpson.