How a government court climbdown should make it easier for councils to find 'deliverable' housing sites for their land supply

A secretary of state concession in a High Court case widens the scope of 'deliverable' housing sites that local authorities can add to their land supply, experts agree, but opinion is divided as to whether the long-debated issue has now been put to bed.

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

In the planning world, even a relatively small application can sometimes have wide-ranging consequences. An example is the recently-concluded case that centred around an appeal against a decision by East Northamptonshire council to refuse an application for four homes.

The appeal was upheld by inspector Graham Chamberlain who ruled in January that 774 of the homes identified in the East Midlands council's five-year housing land supply did not meet the required definition of 'deliverable' in the National Planning Policy Framework (NPPF).

The dwellings in question were either proposed on sites allocated in the council's emerging local plan or development schemes judged likely to come forward on previously-developed land, though none had planning permission. None of these sites accorded with the 'closed list' of deliverable sites set out in a glossary of the NPPF. This includes sites with detailed permission, major schemes with outline permission, and those allocated in an adopted local plan.

Following the inspector's decision, East Northamptonshire Council redetermined the application but pursued the point in the High Court because of the decision's wider ramifications for its land supply. Before the case was due to be heard, the secretary of state conceded in a High Court consent order that the definition of deliverable homes should not be limited to the NPPF list.

It is widely agreed by legal experts and practitioners that the secretary of state's concession provides local planning authorities with greater leeway in terms of the housing sites that can be considered as potentially deliverable and therefore could be included in their land supply. Killian Garvey, a planning barrister at Kings Chambers, who represented the developer in the East Northants case, said: "When trying to argue they have sufficient homes, councils can broaden their scope as to what they are going to look at."

Previously, councils including sites not specifically listed in the NPPF definition list ran the risk at appeal of having them removed, said Stuart Tym, senior associate at solicitors Irwin Mitchell. Josef Cannon, a planning barrister at Cornerstone Barristers who acted for East Northants Council, said a strict interpretation meant sites that failed to meet the NPPF criteria could not be considered even if the evidence suggested they were going to be built on in the near future. "You might have a site with full resolution to grant planning permission waiting for a section 106 agreement to sign with no obstacles and it's just a matter of time," he said. Not counting this type of site as deliverable was "obviously absurd", Cannon said.

Shelly Rouse of the Local Government Association's Planning Advisory Service, agreed. "In a practical world, these sites have the potential to be delivered so why wouldn't you have them as deliverable in your land supply?"

However, Tym countered that section 106 agreements can take up to two years to conclude and unless there is evidence that a signed agreement is circulating, it shouldn't be relied upon. This could knock hundreds of homes out of the authority's pipeline of deliverable units if it is relying on a couple of large sites, he sugested.

And he added that just because a site can be considered for deliverability doesn't mean it will pass the NPPF test. Unless it has a detailed permission, councils will still need to furnish "clear evidence" to demonstrate that the homes will be delivered within five-years, said Tym.

Cannon agreed. "It will increase the scope of arguments but won't change how difficult it is to convince an inspector that those sites are deliverable: the evidence test hasn't been changed," he said.

For developers, the secretary of state's concession will be a setback, said Garvey. "When challenging a local authority's supply, an appellant can no longer make a blanket reduction to its supply by excluding non-listed sites," added Harry Bennett, a senior planner at consultancy Lichfields.

The implications of the secretary of state's concessions will vary greatly by authority, said Garvey: "It can be marginal in some but in others can be huge and game-changing." It also means that councils will have greater freedom to exercise their grassroots knowledge about the chances of sites being delivered, said Rouse: "This helps with flexibility to look beyond the tick box to other sites that can legitimately be included. Councils should have a very good grasp of their pipeline of deliverable sites."

However the greater room for planning judgement means more scope for "uncertainty" and therefore argument, said Garvey. And that could mean additional delays for appeals, said Tym: "You could add up to half a day at least to the average inquiry while we go through every single site."

So has the secretary of state's concession put this long running issue to bed? Rouse is confident that it has. "Because the secretary of state has been so explicit in this decision, it resolves the issue. This sends a clear message to the Planning Inspectorate that this is the way the words should be the interpreted."

Canon agreed: "It's the secretary of state's own policy and he decides what he wants it to mean." Inspectors, who stick with the closed list, will expose themselves to a court challenge on the grounds that they have misunderstood the secretary of state's policy, he said.

However legal precedent suggests that the picture is not quite so clear cut, said Tym: "It's not for decision-makers themselves to tell us what policy means: it's for courts to interpret what it means in an objective format."

Garvey said he expected the issue to return to the courts and suggested there should be a clarification in the government's Planning Practice Guidance. "The court has applied a consent order but it's not binding in law. It's not put the point to bed."

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