East Bergholt Parish Council v Babergh District Council

A local planning authority’s five-year housing land supply assessment involves planning judgment about whether sites are available, suitable and viable, and whether there is a realistic prospect of delivery within five years. Deliverability is distinct from actual delivery, and the assessment does not require certainty that homes will be built. Judicial review does not permit the court to substitute its own planning judgment. Intervention is justified where an officer’s report contains a distinct and material defect which materially misleads the decision-maker, or fails to address a matter requiring explicit advice. Reports must be read in context, including material and explanations already available to councillors. A local authority may take account of the need for a robust and defensible assessment.

The claimant parish council challenged the defendant local planning authority’s grant of three planning permissions for 229 dwellings. The applications conflicted with the local Development Plan, but the authority applied the National Planning Policy Framework’s tilted balance because it considered that it lacked a five-year housing land supply.

The challenge alleged that the authority had unlawfully assessed site deliverability and delivery, adopted an impermissibly demanding threshold, failed to explain its approach, materially misled the planning committee, and acted unfairly. The central issues were whether the housing land supply assessment or the committee’s decisions disclosed a legal error, and whether the officer’s reports were materially misleading or inadequate.

1. Application dismissed. The challenge was in substance directed at the authority’s annual monitoring report and five-year housing land supply assessment rather than at the planning judgments made on the three applications.
2. The assessment of whether sites are deliverable involves judgments about availability, suitability, viability and whether there is a realistic prospect of housing being delivered within five years. Deliverability is not the same as delivery. St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2018] PTSR 746 did not establish that every site with any realistic prospect of delivery had to be included.
3. The claimant had not shown that the authority’s planning judgments were legally flawed. The fact that particular sites were omitted did not establish that the realistic-prospect criterion had been misapplied; other judgments might have been made about suitability, availability or viability.
4. Applying the principles in Morge v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268 and Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2018] PL 176, the reports were not significantly misleading. They explained the relevant policy framework, identified the housing supply figures, explained the operation of the tilted balance and disclosed the relevant representations. The committee also had access to explanations given at earlier meetings and could have sought further information.
5. The standard in South Buckinghamshire DC v Porter [2004] UKHL 33; [2004] 1 WLR 1953 was met. The reasons were intelligible and adequate, and there was no substantial doubt that the committee misunderstood a relevant policy or material issue. Nor was there procedural unfairness. The difference between four and five days’ notice did not materially affect the claimant’s ability to make representations.
6. The authority was entitled to take account of the need to formulate a robust assessment capable of being defended in planning appeals. The claim was therefore dismissed.