Cotswold District Council V (1) Secretary Of State For Communities And Local Government (2) Fay And Son Limited  EWHC 3719
High Court Gives Guidance on Meaning of “Persistent Under Delivery of Housing” in NPPF
Mr Justice Lewis has dismissed two section 288 appeals by Cotswold District Council rejecting the claim that the Secretary of State had misconstrued the meaning of “persistent under delivery” in paragraph 47 of the National Planning Policy Framework. The cases, Cotswold District Council v (1) Secretary of State for Communities and Local Government (2) Fay and Son Limited  EWHC 3719 will be of interest to both developers and local planning authorities grappling with housing land supply issues. Mary Cook of Cornerstone Barristers acted for Fay and Son Limited in both the inquiry and High Court challenge.
The court found that, whilst paragraph 47 would involve consideration of the meaning of the word persistent, the paragraph would also involve questions of judgement. The decision-maker’s judgement is involved in applying the concepts to a given set of facts in order to determine whether or not a particular degree of under delivery of housing falls within paragraph 47, thereby triggering the requirement to bring forward an extra amount of housing to meet past shortfalls. The court found that paragraph 47 had to be interpreted and applied having regard to its purpose and context.
The Judge commented in particular:
“The first bullet point [in paragraph 47] is concerned with ensuring that Local Plans meet the full, objectively assessed needs for market and affordable housing. That is, it is dealing with the assessment of need for the period after the end of the Structure Plan and during the currency of the next Local Plan (to cover an appropriate time scale, preferably a period of 15 years: see paragraph 157 of the Framework). The second bullet point is concerned to ensure that local planning authorities identify a “supply of specific deliverable sites sufficient to provide five years worth of housing” with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market. Where there has been “a record of persistent under delivery of housing” local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land.
In the context of paragraph 47, the reference to “persistent” under delivery of housing is a reference to a state of affairs, under delivery of housing, which has continued over time. A decision-maker would need to have regard to a reasonable period of time measured over years rather than looking at one particular point, to ensure that the situation was one of persistent under delivery rather than a temporary or short lived fluctuation. The precise period of time would be a matter for the judgment of the decision-maker. There has to be a “record” of under delivery of housing. That points towards assessing previous performance (i.e. the performance in the period prior to the expiry of the Structure Plan and before the new Local Plan should have come into force). The need to establish a record of under delivery indicates there will need to be some measure of what the housing requirements were, and then a record of a failure to deliver that amount of housing persistently, i.e. a failure continuing over a relevant period of time. A decision-maker would be entitled to take the figures in the previous Structure Plan as a measurement of what the housing requirement was in order to assess whether there has been a record of persistent under delivery of housing. However, the requirement is that there has been a record of persistent under delivery of housing (not a failure to meet the targets set out in the Structure Plan). It would, in my judgment, be open to a decision maker to identify an appropriate measure of housing needs either separately from the Structure Plan or as a means of reinforcing conclusions drawn on the basis of the Structure Plan.