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

For the five-year housing land supply required by national planning policy, a site is “deliverable” when it is capable of delivery within five years and there is a realistic prospect of housing being delivered. Actual delivery need not be certain or probable. Deliverability is distinct from both actual delivery and the expected rate of delivery shown in a housing trajectory.

A housing trajectory and the authority’s previous delivery record may bear on the credibility of its supply assessment. Their evaluation remains a matter of planning judgment. On a statutory planning challenge, the court must read the decision fairly and as a whole. It should intervene only for legal error, irrationality or inadequate reasons on a principal important controversial issue.

St Modwen Developments Ltd v Secretary of State for Communities and Local Government & Ors concerned two recovered planning appeals for large housing developments on land allocated principally for employment use. The Secretary of State accepted an inspector’s recommendation and dismissed both appeals. He concluded that the local planning authority had demonstrated a five-year supply of deliverable housing sites.

Ouseley J dismissed the developer’s application under section 288 of the Town and Country Planning Act 1990: [2016] EWHC 968 (Admin). The developer appealed, arguing that the Secretary of State had misunderstood deliverability, failed properly to consider the authority’s housing trajectory, and inadequately addressed its record of housing delivery. The central issue was whether national planning policy required an assessment of what housing would probably be delivered, rather than whether sites were capable of delivery with a realistic prospect of housing within five years.

1. Appeal dismissed. Lindblom LJ, with whom McCombe and Jackson LJJ agreed, held that the inspector and the Secretary of State had neither misunderstood nor misapplied national planning policy. Their reasons were clear and adequate.

2. “Deliverability” was distinct from actual delivery and from the expected rate of delivery. A site could be deliverable although it might not ultimately be developed within five years because of financial, commercial or market decisions outside the planning authority’s control. The policy required a realistic prospect of delivery, not certainty or probability.

3. The policy definition contained four elements. A deliverable site had to be available now, offer a suitable location for development now, be achievable with a realistic prospect of housing delivery within five years, and be viable. Existing planning permission was not a prerequisite. The inspector was therefore entitled to include sites allocated in an emerging local plan after making a fact-sensitive assessment of their deliverability.

4. A housing trajectory performed a different function. It illustrated the expected rate of delivery during the plan period and assisted plan-making and monitoring. It did not replace the development-control inquiry into whether the authority could demonstrate a five-year supply of deliverable sites. The inspector had considered the trajectory as evidence bearing on the credibility of the authority’s supply figures and was entitled, as a matter of planning judgment, to find that it did not disprove those figures.

5. The authority’s previous delivery record was also considered. It did not compel rejection of the supply assessment, particularly where the emerging plan contained new policies and allocations. The 20% buffer prescribed for persistent under-delivery was a mechanism for improving the realistic prospect of achieving the planned supply.

6. A statutory planning challenge must not subject an inspector’s report or decision letter to hypercritical dissection. The court determines the meaning of policy, but its application, the weight given to evidence and conclusions on housing supply are for the planning decision-maker unless unlawful or irrational. The revised planning guidance did not invalidate the decision because its substance was not materially different and express consideration of it could not conceivably have altered the conclusions.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld Ouseley J’s rejection of the statutory challenge.

2. Administrative Court, Planning Court: Ouseley J dismissed the application under section 288 of the Town and Country Planning Act 1990: [2016] EWHC 968 (Admin).