Housing land supply

Richard Honey analyses a ruling by a High Court judge on housing land supply, deliverable sites and housing market areas.

Mr Justice Ouseley has handed down judgment in St Modwen Developments v SSCLG & ERYC [2016] EWHC 968 (Admin). The case was a challenge to a refusal by the Secretary of State of outline planning permission for residential development of land at Melton Park. The judgment deals with the meaning of paragraph 47 of the National Planning Policy Framework (NPPF) and its related footnote 11. The claim was rejected on all grounds. 

The developer argued that for a site to be “available now” in terms of footnote 11 it had to have planning permission or a resolution to grant planning permission. Ouseley J rejected this, commenting:

• the phrase “available now” is apt to deal with “the starting constraints to development” such as ownership constraints, rather than the grant of planning permission, and that the phrase “looks to the present availability of the land in question” (para 21);
• it cannot sensibly be argued that planning permission is required now for a site to be realistically deliverable over the next five years (para 20).

On the interpretation of the NPPF more generally, the judge said: “It is a strong indicator that an interpretation of a phrase within the NPPF is wrong if it yields an outcome which lacks a sound planning basis” (para 19). 

As to whether or not the planning practice guidance (PPG) could be relevant to the interpretation of the NPPF, the judge said (para 36):

“I regard it [the PPG] as relevant as an aid to interpretation by the Court of the NPPF. The NPPF is not to be construed like a statute or contract. It is not a multilateral agreement such as a contract or treaty. A bespoke approach is required for the interpretation by the Court of statements made by the policy-maker, for the benefit of those who are affected, as to how he intends in general to use his discretionary powers. The policy-maker of the NPPF cannot say that he meant one thing when he used words which mean something else. But when the policy-maker produces a subordinate document to expand upon what he has previously said, which does not and is not expressly intended to contradict it, that document may assist  the Court in understanding what was intended in the first place and why, thus assisting it in its task of interpretation. This is not substituting his views for the interpretation of the Court.”

He also said (para 74):

“I emphasise the role of the more sensible planning judgment as a tool for the court in ascertaining the correct interpretation of the policy. Nor do I regard it as irrelevant that the author of the policy has endorsed a particular interpretation of it”. 

Ouseley J rejected the developer’s argument that there was a burden of proof on a local planning authority to demonstrate the viability of the sites relied on as part of the five year deliverable housing land supply. The judge said that considerations of burdens of proof on specific aspects were “wholly inappropriate for evaluative planning decisions of this nature” (para 45). He concluded that there was no need to produce viability assessments for the sites relied on and that the Inspector was not herself required to determine whether the sites were viable (para 47). 

On the concept of “deliverable” from paragraph 47 of the NPPF and footnote 11, the Judge said (para 51):

“The NPPF and the assessment of housing land supply are concerned with “deliverability”, which is an assessment of the likelihood that housing will be delivered in the five year period on that site. The assessment of housing land supply does not require certainty that the housing sites will actually be developed within that period. The planning process cannot deal in such certainties.”

Ouseley J also recognised the difference between the figures to be found in a housing land supply assessment and a housing trajectory, distinguishing what was deliverable from what would probably be delivered. He commented (para 59):

“If sites are deliverable, and the problem in delivery is not within the control of the planning authority, for example the cost of housing or the availability of finance, the solution to a problem of delivery is not an increase in the supply of sites which are capable of delivery.”

On the question of whether housing needs should under paragraph 47 be assessed at the district or housing market area level, Ouseley J concluded that “the NPPF does not require housing needs to be assessed always and only by reference to the area of the development control authority” (para 74). He went on (para 77):

“It is clear from NPPF [159] supported by the PPG that the housing market area is not synonymous with the area of a single local planning authority, though they are often the same. The aim is to assess housing needs fully and objectively, and the needs are those of the market area and not those of the district council’s area. The NPPF would read very differently if “housing market areas” was another phrase for planning authority areas, as it could so easily have said had that been intended. The text of NPPF is replete with references to the need for cross-boundary co-operation.”

The judge rejected the argument that the apportionment of need between two authorities in a housing market area was an impermissible policy constraint on meeting full housing needs. The judgment also considers how co-operation and apportionment between authorities ought to take place where the housing market area covers more than one authority (paras 78-79).

Ouseley J emphasised the importance of understanding how the parties’ cases had been advanced at the inquiry, commenting: “it is necessary to be cautious lest a point on a s288 challenge takes a very different shape and emphasis from that which it had before the inspector” (para 58). 

Richard Honey is a barrister at Francis Taylor Building. He appeared for the Secretary of State, instructed by the Government Legal Department.