In a development which is likely to have major implications for the way in which local planning authorities go about calculating their five-year supply of housing land, the Secretary of State has consented to judgment in a s.288 appeal against a decision of one of his planning inspectors in which the inspector took the view that the definition of 'deliverable' in the Glossary to the NPPF is a 'closed list' – i.e. that the only types of sites that can be considered are those listed there. The Secretary of State has confirmed that this interpretation is incorrect (and an error of law).
Local planning authorities are obliged by the NPPF to consider their future supply of housing land, and calculate whether they have identified sufficient 'deliverable' sites to meet their needs arising (whether against the housing target in their plan, or the Local Housing Need derived from use of the Standard Method). If they cannot demonstrate sufficient sites to meet 5 years of need arising, then the famous 'tilted balance' in paragraph 11 of the NPPF applies automatically, and planning permission for housing proposals will be harder to refuse.
The Glossary to the NPPF says:
Deliverable: 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. In particular:
a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).
b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.
For some time there has been a debate in the planning community about how to interpret that definition: should it be read to mean that only those types of site listed in categories (a) and (b) can be considered (the 'closed list' interpretation); or do categories (a) and (b) simply set out the presumptions as to evidence required for those listed types of site, with other types permissible if the evidence shows that they are deliverable (the 'non-closed list' interpretation)?
That debate ought now to have been put to bed. The Secretary of State has explicitly accepted that the definition is not to be taken as a 'closed list' and site types not listed within the definition – for example, sites with a resolution to grant planning permission subject to the execution of a s.106 agreement, or draft allocations in an emerging plan - are capable of being deliverable if the evidence shows that they are "available now, offer a suitable location for development now, and are achievable with a realistic prospect that housing will be delivered on the site within five years". That will be a matter for planning judgment on the evidence available.
The Inspector took the view, as a matter of principle, that the definition was to be taken as a 'closed list' and, without going on to consider the site-specific evidence, removed some 700+ units from the Council's claimed supply, on the sole basis that they were on sites types that did not fall into categories (a) or (b) in the Glossary definition. On that basis, he found that the Council could not show a five-year supply of housing land, and allowed the appeal against refusal of planning permission for four houses.
In consenting to judgment quashing that decision on that sole basis, the Secretary of State confirmed, in the Statement of Reasons attached to the Consent Order:
"The proper interpretation of the definition is that any site which can be shown to 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' will meet the definition; and that the examples given in categories (a) and (b) are not exhaustive of all the categories of site which are capable of meeting that definition. Whether a site does or does not meet the definition is a matter of planning judgment on the evidence available."
What does this mean?
In calculating their five-year housing land supply, local planning authorities may consider sites that do not fall within categories (a) or (b) in the definition of 'deliverable' and may include them if the evidence shows, as a matter of planning judgment, that they are 'deliverable'. Sites in category (a) will not need evidence to show that they are deliverable (but evidence can be led to show that they are not), and sites in category (b) will always require 'clear' evidence showing they are deliverable before they can be included.
In effect, the new approach extends the approach to category (b) sites to any other kind of site not listed: for those sites to be considered deliverable, there will always need to be robust evidence showing that they meet the definition. That evidence should always be 'clear' – anything short of 'clear evidence' is likely to fail to persuade a decision-maker that the site is deliverable and can be included.
Josef Cannon acted for the successful claimant, East Northants Council, instructed by Vanessa Blane of LGSS Law Ltd.