St Modwen Developments Ltd v Secretary of State for Communities and Local Government & Anor

For the purposes of the five-year housing land supply, a site need not have planning permission. Deliverability is a fact-sensitive planning judgment concerning whether housing has a realistic prospect of being delivered within five years. Sites allocated in an emerging local plan may be included where the evidence supports their availability, suitability, achievability and viability.

Housing need is assessed by reference to the relevant housing market area, not invariably the area of a single local planning authority. Where the market area crosses administrative boundaries, an agreed and properly evidenced apportionment may be used. A planning obligation must be necessary, directly related, and fairly and reasonably related in scale and kind to the development before it can justify permission.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of its appeals against refusal of permission by East Riding of Yorkshire Council.

The proposed developments at Melton comprised either 510 houses, or 390 houses with employment land and alternative affordable-housing or bridge-funding arrangements. The principal issues were the interpretation of the National Planning Policy Framework concerning five-year housing land supply and objectively assessed housing need, and the treatment of a proposed £6 million contribution towards a railway bridge.

The court had to decide whether the Inspector and Secretary of State had erred in law in assessing deliverability, housing need, and the planning obligation.

1. Housing land supply. The claim failed on all challenges to the Inspector’s assessment. Under NPPF paragraph 47 and footnote 11, planning permission is not a prerequisite to deliverability. “Available now” primarily concerns legal or physical impediments, including ownership constraints. Deliverability instead asks whether there is a realistic prospect that housing will be delivered on the site within five years. Allocations in an emerging local plan may therefore be included, subject to a fact-sensitive assessment of the evidence.
2. The assessment of deliverability is an evaluative planning judgment. There was no inappropriate burden of proof requiring the Council to produce a separate viability assessment for every site. The Inspector had sufficient evidence concerning the emerging plan, infrastructure constraints, consultation, ownership, deliverability and the Council’s commitment to give weight to allocations. The absence of certainty that sites would actually be built did not establish that they were not deliverable. Supply and delivery were distinct concepts.
3. Housing requirement. The Inspector was entitled to assess objectively assessed need by reference to the relevant housing market area, including the relationship between East Riding and Hull, and to use an agreed apportionment between the authorities. Hunston required full objectively assessed need without policy constraints; it did not require the use of a single authority’s administrative area. In any event, the alternative housing-requirement figures produced the same conclusion on supply.
4. Bridge contribution and planning balance. Regulation 122 of the Community Infrastructure Levy Regulations 2010 was engaged. The Inspector reasonably concluded that the proposed bridge contribution was disproportionate to the employment-land harm, did not provide an equivalent substitute, and would not overcome the strategic loss of the Melton employment site. The reduced housing in Appeal B reduced the benefits without materially reducing the relevant harm.
5. The application under section 288 was dismissed.

First-instance judicial review challenge under section 288 of the Town and Country Planning Act 1990. The court dismissed the application.