Have the courts made it easier for councils to show they are delivering enough homes?

Proving that councils don’t have a five-year housing land supply is one of the key tools developers use to secure planning permission. A recent Appeal Court judgement might make that a more difficult task in future. This post explains why.

The importance of a five-year supply

A central aim of the government’s National Planning Policy Framework is to “boost significantly” the supply of new homes. To help achieve that objective, every council is supposed to maintain a supply of deliverable housing sites that is sufficient to meet their needs for the next five years.

When a council can’t show that, their policies for the supply of new homes are considered to be out-of-date and become much less important in the decision making process. Instead, the presumption in favour of sustainable development applies which can make it easier for planning permission to be granted. A shortfall in the supply of homes is often used as part of the argument to secure planning permission on greenfield sites. We’ve covered that in more detail previously.

What is a “deliverable” site?

A key word here is “deliverable.” National policy is clear that homes have to be “deliverable” to be included in the housing land supply. In the words of the Framework, that means sites should be “available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable.”

When trying to assess a council’s housing land supply, developers typically focus on the requirement that there is a “realistic prospect” that the homes will delivered within five years. That has usually been interpreted very narrowly, excluding almost all sites other than those that are allocated in a Local Plan or which already have a planning permission. If a site doesn’t have planning permission yet, so the argument goes, how can we possibly be sure it will actually deliver new homes?

Clarity from the courts

However, a recent judgement by the Court of Appeal could make it much harder for developers to show that a site isn’t deliverable. That, in turn, will make it much easier for councils to show they have the five-year supply they need.

In his judgement, Lord Justice Lindblom provided some guidance on what deliverable actually means. He observed that:

“Deliverability is not the same thing as delivery. The fact that a particular site is capable of being delivered within five years does not mean that it necessarily will be. For various financial and commercial reasons, the landowner or housebuilder may choose to hold the site back. Local planning authorities do not control the housing market. NPPF policy recognizes that.”

He went on to say that as a consequence of that distinction:

“This does not mean that for a site properly to be regarded as “deliverable” it must necessarily be certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent possible, within five years.”

The implications

That interpretation of deliverable is much wider than the one typically employed by developers. For instance, it would allow the inclusion of sites that are proposed to be allocated for development or for which an application has yet to be submitted. Councils will therefore be able to show a much higher deliverable supply of new homes – which will make it easier for them to reach the five-year minimum.

The government’s proposed new methodology for calculating housing need, which is likely to result in a reduction in housing targets across much of the country, will exacerbate that difficulty.

That isn’t to say it will be impossible to show that a council isn’t delivering enough new homes. They will still need to meet that minimum requirement, even if it will be a little easier for them to do so.

But it does mean that monitoring housing land supply and getting the timing of planning applications right will become much more important.

That’s where The Strategic Land Group can help. We’re a specialist land promoter, working to secure planning permission on your site at our cost and risk. Our return is a share of the value of the site once it is sold – if we don’t succeed, it doesn’t cost you anything.

We’re always on the lookout for new sites that could benefit from our approach. If you know of one that might be suitable, then get in touch today.

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