East Bergholt Parish Council, R (on the application of) v Aggett & Ors

Under paragraph 47 of the National Planning Policy Framework, a housing site is deliverable only if it is available, suitable, achievable and viable. Achievability requires a realistic prospect of delivery within five years, but not certainty or any prescribed degree of likelihood. The assessment is a predictive planning judgment. A local planning authority may adopt a cautious or optimistic view, subject to conventional public law controls. The court may construe the policy and intervene for misunderstanding, misapplication or irrationality, but must not substitute its own planning judgment. A robust assessment may reduce the cost and risk of appeals, but financial or resource consequences must not distort the authority’s assessment of planning merits.

East Bergholt Parish Council sought judicial review of three housing permissions granted by Babergh District Council. The developments conflicted with parts of the development plan, but the council considered that it could not demonstrate a five-year supply of deliverable housing sites and applied the relevant presumption in favour of sustainable development.

The Administrative Court dismissed the claim: [2018] EWHC 3400 (Admin). On appeal, the parish council argued that the council had treated deliverability as requiring certainty of delivery and had allowed concern about the cost of defending appeals to influence its decisions. The central issues were the proper meaning of deliverability and the lawfulness of considering financial consequences for the authority’s resources.

1. Appeal dismissed. The council’s assessment of its five-year housing land supply did not disclose an error of law, irrationality or any other public law error.
2. Under paragraph 47 and footnote 11 of the National Planning Policy Framework, deliverability involves four cumulative considerations: availability, suitability, achievability and viability. Achievability asks whether there is a realistic prospect that housing will be delivered within five years. It is a broad policy concept, not a fixed legal threshold. The policy neither requires certainty or probability of delivery nor prescribes a particular method or level of likelihood.
3. The decision in St Modwen Developments Ltd v Secretary of State for Communities and Local Government, [2017] EWCA Civ 1643, did not create a lower bar or require every site with a realistic prospect of delivery to be included. A decision-maker could reasonably adopt a cautious approach and exclude sites lacking confidence of delivery. Sites without permission, or with a resolution to grant subject to a section 106 obligation, were not automatically included or excluded.
4. The court’s role was to construe the policy and intervene if the authority misunderstood or unlawfully applied it. Planning judgment remained for the decision-maker. The annual monitoring report expressly addressed the four elements of deliverability, included sites without planning permission and demonstrated that the council had not applied a test of absolute certainty.
5. The council was not entitled to let the possible cost of appeals or judicial review influence its planning judgment on the merits. However, the policy requirement for a robust and defensible assessment inherently reduced the risk of unnecessary expenditure and costs awards. The reasoning in Health and Safety Executive v Wolverhampton City Council, [2012] UKSC 34, concerned a different question and did not require a different result. The local finance provision in section 70(2)(b) of the Town and Country Planning Act 1990 was not relevant; section 70(4) defined local finance considerations as grants or financial assistance and Community Infrastructure Levy receipts.
6. Lord Justice Irwin agreed with both judgments. Lord Justice Underhill agreed that the appeal should be dismissed, while emphasising that awareness of appeal costs must not become an influence on the exercise of planning judgment.

1. Court of Appeal (Civil Division) — The appeal was dismissed. The court upheld the lawfulness of the council’s approach to the five-year housing land supply and its planning decisions. [2019] EWCA Civ 2200.
2. Administrative Court, Planning Court — Sir Ross Cranston dismissed the judicial review claim challenging three grants of planning permission. [2018] EWHC 3400 (Admin).