Housing supply

November 8th, 2018 by James Goudie KC

In Cheshire East Council v SoS for HCLG (2018) EWHC 2906 (Admin) the claimant Council sought an Order quashing the decision of the SoS’s Inspector to grant outline planning permission for 29 dwellings.  The central issue in the claim was whether the Inspector misunderstood and/or misapplied paragraph 47 of the first NPPF, in particular with the requirement for LPAs to demonstrate a five-year “deliverable” housing supply.Justine Thornton QC, sitting as a Deputy High Court Judge, said, in relation to the policy framework:-

“39.    Paragraph 47 of the NPPF sets down the objective of significantly boosting the supply of housing to deal with the national problem of unmet demand for housing. The message to planning authorities is unmistakable (Hopkins Homes Limited v Secretary of State for Communities & Local Government [2017] UKSC 37). In order to significantly boost their housing supply local authorities are required to identify a five year supply of deliverable housing sites. The test for deliverability is whether there is a realistic prospect of delivery of the housing within 5 years.

  1. As paragraph 49 makes clear, it is the job of the Local Planning Authority to demonstrate the five year supply of deliverable housing. The paragraph indicates the way in which the lack of a five year supply of sites can be put right by triggering the operation of the tilted balance in paragraph 14 of the NPPG where the planning authority has failed to deliver the requisite supply. Once the trigger is activated the decision maker should be disposed to grant the planning application unless the presumption in favour of permission can be displaced Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37.
  2. In accordance with the policy framework, in deciding an application for planning permission for a housing development, a planning inspector must decide whether or not a local planning authority has demonstrated a five year supply of deliverable housing, however hard or difficult a question this is to answer.”

As to the application of the policy framework, the Judge said:-

  1. … it is reasonable to assume that national planning policy is familiar to inspectors and that I should approach arguments that inspectors have misapplied some fundamental components of planning policy with great hesitation (St Modwen Developments Ltd v Secretary of State [2017] EWCA Civ 1643).
  2. In applying the policy framework, the key question for the inspectors to answer was whether the Council had demonstrated a 5 year supply of housing with a realistic prospect of being delivered. …”

 “46.   In my judgement, there is no error of law in the inspector’s application of the policy framework. He has considered the evidence and applied his judgment. His precautionary approach to the evidence before him is not … an impermissible additional test but an application of his judgment to answer the central question of whether the Council had demonstrated a five year supply, within the context of a policy imperative to significantly boost the supply of housing. …”

As to evidence of deliverability, the Judge said:-

“52.    … excessive legalism … is to be deprecated (see St. Modwen paragraph 7). … it is apparent that the Inspector has identified clear evidence that the schemes will not be implemented in five years, …


  1. Mr Taylor sought to suggest that the third sentence in paragraph 31 of the Planning Policy Guidance (Local Planning Authorities will need to provide robust, up to date, evidence to support the deliverability of sites, ensuring that their judgements on deliverability are clearly and transparently set out) applies only to sites which do not have planning permission or are not allocated in a Local Development Plan … I agree with Mr Honey’s submissions that the reference to “robust” in both paragraphs 31 and 33 is intended to be an echo of paragraph 49 of the NPPF which requires local planning authorities to demonstrate the existence of the requisite housing supply. …”

There was clear evidence that certain housing schemes would not be implemented within five years. In any event, the implication of the Council’s submission, that weak or inadequate evidence would be good enough to prove deliverability for sites with planning permission, was nonsensical, in the context of the need to increase housing supply.

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