03/12/2013

High Court considers NPPF and the five year land supply

Paragraph 47 of the National Planning Policy Framework (“the Framework”) requires local planning authorities to maintain a five year supply of deliverable housing land.  In calculating that requirement the Framework requires local planning authorities to apply a 5% buffer to their annual housing requirement.  Where a local planning authority has a “persistent record of under delivery” of housing, the Framework requires that the buffer be increased to 20%.

In Cotswold DC v Secretary of State for Communities and Local Government the Council was seeking to challenge the Secretary of State’s decision to grant two separate planning appeals for residential development.  Key to the decision to grant the appeals was the Secretary of State’s finding that the Council did not have a five year supply of deliverable housing sites as required by the Framework.  In reaching this conclusion he found the Council to have a persistent record of under delivery.

In rejecting the Council’s challenges the judge made some important rulings on the meaning of “persistent under delivery”.

In the judge’s view, “persistent under delivery of housing is, “a reference to a state of affairs, under delivery of housing, which has continued over time.”  The judge went on to find that the period of time over which an assessment of delivery should be carried out was a matter of a judgement for the decision-maker.  Crucially, he accepted the Secretary of State’s use of a five year period for an assessment of performance (which had been adopted on the basis that it mirrored the five year requirement for housing land supply) rather than the Council’s preferred approach of looking at the entire life of the previous Structure Plan.

The judge was satisfied that in adopting a five year period rather than a longer one the Secretary of State had taken into account the state of the economy and the housing market during that period of time.

The judge also approved of the Secretary of State’s decision that the housing targets set out in the old Structure Plan did not reflect the actual housing requirement during the preceding five years.  He agreed with the Secretary of State that the actual requirement against which delivery should be assessed should be higher than the target in the Structure Plan because that target was based on 1996 projections and more recent projections identified a greater need.  This will be unwelcome news for local planning authorities who may find that they are found to be under delivering against need even when they are meeting development plan targets if it can be demonstrated that those targets are out of date.

The decision will be welcomed by the development industry and provides support to the approach that the Secretary of State and his Planning Inspectors have taken in many recent appeal decisions.  It is therefore to be hoped that it will encourage local planning authorities to more readily accept the fact that they do not have a five year land supply rather than keep forcing developers into unnecessary planning appeals to establish what is often very obvious from the outset.