Barrow Upon Soar Parish Council v Secretary of State for Communities & Local Government & Ors

Under the National Planning Policy Framework, “deliverable” housing need not be completed within five years. For a site outside the identified five-year housing supply, the relevant question is whether substantial housing delivery has a realistic prospect within a reasonable period. An outline permission may lawfully rely on conditions addressing infrastructure and drainage, provided there is no basis for concluding that the required works have no prospect of completion within the permission period. Where the local planning authority cannot demonstrate a five-year supply of deliverable sites, the presumption in favour of sustainable development applies. Emerging planning policy may be given little weight where it remains at an early stage and would not alter the result.

The claimant sought to quash the Secretary of State’s decision of 14 May 2013 granting outline planning permission for up to 300 dwellings on a Greenfield site east of Barrow upon Soar. The permission followed a planning inquiry and an inspector’s recommendation, which the Secretary of State accepted.

The claim alleged that the inspector had irrationally concluded that the development had realistic prospects of delivery within five years, particularly because sewage infrastructure required improvement. It also alleged that the Secretary of State should have sought further representations or reopened the inquiry after the local planning authority approved an emerging Core Strategy proposing a 200-dwelling limit for Service Centres.

1. Claim dismissed. The inspector made no error of law in concluding that the development had a realistic prospect of substantial delivery within an appropriate timescale.
2. The five-year “deliverable” definition in paragraph 47 of the National Planning Policy Framework concerns the identification of sites capable of providing a five-year housing supply. It does not impose a requirement that development on every site be completed within five years. For a site outside that identified supply, delivery within a reasonable time may be secured by conditions. The outline permission’s conditions required reserved matters, commencement and foul-sewage arrangements within defined periods. The permission would lapse if those requirements could not be met.
3. Because the local planning authority could not demonstrate a five-year supply, the presumption in favour of sustainable development under paragraphs 14 and 49 of the National Planning Policy Framework applied. The inspector was entitled to conclude that the site constituted sustainable development and that its benefits were not significantly and demonstrably outweighed by adverse impacts.
4. The inspector was entitled to rely on the developer’s experience and financial resources, together with the statutory obligations of relevant infrastructure bodies. The absence of prior approaches to Severn Trent Water or Network Rail did not make the decision irrational. Condition 9 was also lawful. The amended policy in paragraph 40 of Circular 11/95 permitted a condition dependent on a third party’s action unless there were no prospects at all of that action being performed within the relevant period.
5. Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 was not engaged because the Secretary of State did not disagree with the inspector on a matter of fact or rely on fresh evidence or new facts. Independently, fairness did not require further representations. The emerging Core Strategy had been foreshadowed before the inspector, remained at an early stage, and could not have required refusal of the application.