Court of Appeal clarifies St Modwen test for deliverability

13 Dec 2019

Planning and Environment, Public Law and Judicial Review

Yesterday the Court of Appeal gave judgment in R (East Bergholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200. The case concerned three planning permissions for housing granted by Babergh DC at East Bergholt, relying on the tilted balance to over-ride development plan policies because Babergh considered it no longer had a 5YHLS.

The Parish Council brought a judicial review on the basis that Babergh had misapplied the St Modwen test by seeking ‘certainty’ for its 5YHLS supply rather than ‘deliverability’, and had also been wrongly influenced by the fear of costs if it lost appeals. Sir Ross Cranston dismissed the claim in December 2018 but the Parish Council appealed.

The Court of Appeal (Underhill, Lindblom, and Irwin LJJ) dismissed the appeal on both grounds. Lindblom LJ gave the main judgment.

The essential finding was that Babergh had not, on the facts, sought ‘certainty’ and had included in its supply allocated sites without planning permission or only a resolution to grant but no s.106 agreement in place. As Lindblom LJ said, this “demonstrates an approach considerably less ambitious than a quest for ‘certainty’ of delivery” (para 59).

On the test itself, as set out in the 2012 NPPF (applicable at the time of the decisions), Lindblom LJ said “the policy in paragraph 47, and the PPG guidance upon it, accommodate different views on a ‘realistic prospect’ of delivery. A local planning authority can take a more cautious view on this question, or a more optimistic view, than other authorities might. If it does, it is not for that reason acting contrary to the policy, or unreasonably” (para 53).

Lindblom LJ also clarified that “a ‘realistic prospect’ is not a legal concept. It is a broad concept of policy, which gives ample scope for a decision-maker’s reasonable planning judgment on the likelihood of development proceeding on a site within five years” (para 49) and “a ‘realistic prospect’ is not equated to any specific level of likelihood […] It is not for the court to stipulate how firm a ‘prospect’ must be if it is to be ‘realistic‘” (para 50).

The Court of Appeal was troubled (Underhill LJ especially so) by part of the explanation given by Babergh as to why it wanted to ensure a “robust” 5YHLS when it compiled the assessment reported in its AMR.

This explanation had referred to planning refusals being appealed, which were resource intensive, and could carry a risk of a costs award. The Court was satisfied that Babergh had not allowed non-land use factors to influence its planning decisions.

However, Lindblom LJ warned that LPAs must “not allow the potential consequences of the decision for their own resources to influence their exercise of planning judgment” (para 82) and Underhill LJ said that “Councillors’ job is to exercise their planning judgment, and if that leads to an expensive appeal that cannot be helped” (para 87). Underhill LJ suggested problems could arise “if officers in their advice make express reference to the likely costs consequent on a refusal” (para 87).

Michael Bedford QC acted for Babergh District Council.

He said that the Court of Appeal’s decision is yet another instance of the Court re-affirming the breadth of legitimate planning judgments and the limited role of the Courts in legal challenges to those judgments. Its warnings about not allowing costs risks to influence decisions will need to be borne in mind both by promoters of controversial schemes in the representations they make to LPAs and by officers when advising Members about those decisions.