Planning Magazine has this week reported on a Consent Order settled by the Secretary of State in respect of the word "deliverable" in the NPPF. *Spolier alert - we were involved. This blog will briefly explore whether the Consent Order will indeed have major implications for the way in which local planning authorities go about calculating their five-year supply of housing land or 'put to bed.' the debate within the planning community as to the correct definition of 'deliverable'.

What was the issue in the first place?

NPPF

The astute, or "planning informed" will know this to be a reference to para 11 of the NPPF and to "the presumption in favour of sustainable development when the policies which are most important for determining the application are out-of-date," informed by Footnote 7 as meaning that;

for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73);

Annex

Annex 2 of the Glossary to the NPPF adds further detail, saying

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.

If that were all we had on this point, the debate might well be much shorter. However ...

NPPG

Paragraph: 007 Reference ID: 68-007-20190722 of the Planning Practice Guidance goes on to say that Annex 2 of the National Planning Policy Framework defines what a deliverable site is. "As well as sites which are considered to be deliverable in principle, this definition also sets out the sites which would require further evidence to be considered deliverable, namely those which:

  • have outline planning permission for major development;
  • are allocated in a development plan;
  • have a grant of permission in principle; or
  • are identified on a brownfield register."
And since the re-issuing of both the NPPF and the NPPG the debate has continued as to whether the inclusion of the word "namely" prior to the extended list in the NPPG means that the 2018 has effectively created a "closed list". I.e. if it is not deliverable in principle then the four types of site on the closed list in the NPPG can be further explored to see if housing completions will begin on site within 5 years. This Lichfields blog from last summer certainly supports the drafting point that a "closed list" had been brought about also notes that appeal decisions have generally been consistent in supporting a ‘closed definition’.

East Northamptonshire Council v Secretary of State for Housing, Communities and Local Government concerns a Decision Letter 24 January 2020 from Insp. Graham Chamberlain and the observation at para 36 that "the Council has included sites allocated in the emerging Local Plan (around 549 homes) and unallocated unapproved development schemes that are likely to come forward on previously developed land in urban areas, two of which were discounted by the Council from the brownfield register (around 225 homes). This is a significantly flawed approach as the definition of ‘deliverable’ in the Framework is a closed list. As such, at least 774 homes can immediately be removed from the Council’s housing land supply. This alone means the Council is unable to demonstrate a five-year housing land supply, the supply being in the region of 4.28 years."

The Consent Order for this case then reports that the Secretary of State "concedes that he erred in his interpretation of the definition of deliverable within the glossary of the National Planning Policy Framework (“NPPF”) as a ‘closed list’. It is not. 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."

So what?

I discussed the case after the event with with Killian Garvey, Counsel, of Kings Chambers, who was also involved. He said: -

"This was a very interesting case and one that would have been a delight to argue in the High Court. I do not think this puts the issue to rest, as many developers will still be arguing that the deliverable definition is a closed list. Moreover, the Secretary of State has even made a recent decision where he did not disagree with the Inspector’s recommendation that the deliverable definition is a closed list. Thus, the Secretary of State is continuing to be inconsistent on the point. However, ultimately on the back of us winning the appeal, our client got permission on a re-submission. Thus, it was not worthwhile to continue the litigation - as much as we would have wanted to!"

  1. Firstly; a Consent Order does not create legal precedent. It is not the binding view of a judge giving judgment in the case. It is a compromise, a drawing of stumps, and the reasons of the parties for not continuing will be informed by more than just what is the legally right answer. The view of the Secretary of State given in Particular B is a very brief summary, extracted from the Claimant Councils case, and found to be acceptable, in this case, to not spend public money taking the matter through a full court hearing.
    1. The Developer in this case was seeking approval of 4 houses. The question remains for a strategic promoter of land, who more typically needs to rely on the tilted balance and recalculate failing 5 year supply calculations to take such a case all the way to be heard by a Judge. Until that happens the Consent Order does not have the status of legal precedent, and probably gets less weight than a "called in" Secretary of State Decision Letter.
    2. By the time the Consent Order was sealed the Developer had the benefit of permission, via re-submission, for 4 houses, which relies on the conclusions of the Inspector.
  2. Secondly; the usefulness or otherwise of the Consent Order is limited to the context it may now be quoted - that of the contentious planning hearing or inquiry where the Councils supply is in doubt. It will remain for the Insp. to make a reasoned view in response to those Decision Letters quoted. With that in mind: -
    • The Consent Order is silent as to the effect of the NPPG on the wording of the NPPF. It is my view that the wording given in the Consent Order is entirely correct; the wording in the NPPF does not in itself create a closed list. However when one reads into the NPPF, the NPPG guidance, it must be seen to be a closed list, both by the words used and their practical effect.
    • The Consent Order re-affirms that in applying the question of whether a site is ‘available now, offers a suitable location for development now, and is achievable' the question is one of planning judgment on the evidence. When exercising planning judgment relevant weight must be applied to material considerations. The NPPG remains a material consideration on which the Consent Order is silent. Categories (a) and (b) in the NPPF are not closed; yet it remains difficult to see any reading of the NPPG as being anything other than closed. An Inspector faced with this contradiction will either have to spend time in the inquiry exploring the facts of East Northamptonshire Council or form his/her view on the material and submissions before them.
      • As Killian notes - the Secretary of State has made a recent decision where he did not disagree with the Inspector’s recommendation that the deliverable definition is a closed list and is continuing to be inconsistent on the point.
    • Looking practically then, in this case East Northamptonshire lost 774 units from their supply with one cruel movement of the Inspectors pen, that clearly did not sit easily with them.
      • 549 homes were allocated in the emerging Local Plan. The NPPG "closed list" refers only to "an allocation in a development plan." If we treat the NPPG as the material consideration that it is, there is clearly a difference between an early draft local plan and one which has been through EiP and is progressing fast towards adoption. At this point the weight to be given to the Plan which will be in place in 2 weeks time, is in real terms, greater than the one written 15-20 years ago, for instance. In this case however the Inspector observed that "the emerging plan was not at a stage of preparation where it can be afforded more than very limited weight."
      • 225 homes were unallocated unapproved development schemes that are "likely to come forward" on previously developed land in urban areas, two of which were discounted by the Council from the brownfield register. Had they been on the brownfield register they could clearly have been included in an assessment. That is plain in the NPPG wording. The NPPG wording remains a material consideration however if the Council were to push to see those sites assessed by the Inspector they would need some pretty weighty evidence as to why sites which did not even get on the brownfield register now have any likelihood of coming forward and seeing homes delivered with a 5 year period. Approached in this way, the wording of the NPPG "closed list" takes the legal status (to coin a criminal law defence phrase) of a "reputable presumption against" those scenarios not on the list.
      • The irony here is that the government is dead set on reducing time spent in the planning process and at its worse the Consent Order will incur additional time examining the question of deliverability, either : -
        • for every site, as the list is not closed; or
        • (my view) potentially for some sites, if the rebutable presumption of the list being closed can be rebuted, on the facts of a site coming forward.
As such, whilst the case remains an interesting one, the question of how closed the list is, in relation to the question of deliverable; it is as yet by no means put to bed.