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Legal landscape: Take five - The revised deliverability test


The more rigorous definition of “deliverable” in the revised NPPF makes it harder for councils to put together a five-year housing supply, says Sarah Reid

The National Planning Policy Framework (NPPF) was first published in 2012, and represented a step change in the government’s approach to housing delivery. It was there that the now well-known national policy imperative to secure a “significant boost to the supply of housing” was first articulated.

However, five years later, the government continued to report that the housing market was “broken”. The revised NPPF reiterates the government’s commitment to significantly boosting housing supply. Whilst that aspiration is laudable, in practical terms, how will this be delivered? Perhaps one of the answers lies in the new definition of “deliverable” tucked away in the glossary to the revised NPPF.

That new definition requires that, in order for certain sites  to be included in an authority’s five-year supply, there must be “clear evidence” that completions will begin within five years. This effectively switches the presumption contained in the 2012 NPPF that all sites with planning permission were deliverable (unless there was clear evidence to the contrary).

The onus is now very clearly on the local planning authority to justify the inclusion of these sites, and appeal decisions have confirmed that the new test goes “significantly further” than the 2012 NPPF , and “raises the bar” for the test of deliverability .

The Planning Practice Guidance (PPG) gives examples of what might constitute “clear evidence” of delivery – for example, a statement of common ground between the local planning authority and the developer confirming delivery intentions and anticipated start and build out rates.

The examples in the PPG are not exhaustive and other evidence of a similar quality might suffice. However, the first wave of appeal decisions following the publication of the revised NPPF indicate that inspectors are adopting a relatively strict approach, and attempts to rely on “unsupported assertions” as to deliverability have been robustly rejected at appeal.

“Appeal decisions have confirmed that the new test raises the bar for the test of deliverability"

Attempts to plug the gap in the annual assessment through the appeal process have likewise been found to be “wholly inadequate”. The revised PPG provides an increased emphasis on public consultation and on testing deliverability assumptions with developers, and seeking to provide retrospective justification for the inclusion of sites through the appeal process arguably sidesteps that process.

In Brief

  • The revised NPPF’s new definition of ‘deliverable’ puts the onus on councils to show that completions on a site will begin within five years 
  • This sets a stricter bar for justification of inclusion of sites in the five-year housing supply determination 
  • Inspectors are applying the NPPF definition rigorously 
  • This means authorities may struggle to demonstrate a five-year supply 
  • In that case the presumption in favour of development kicks in and sites outside the allocation may get permission

In any event, the fundamental point is that sites should not be included in the council’s supply at all unless there is “clear evidence” justifying their inclusion, in accordance with the requirements of national policy, at the point of assessment. Significantly, inspectors also appear to be treating the types of sites that are referenced in the new definition of deliverable as a “closed list”. That is, inspectors have specifically declined to count emerging allocations  and sites with resolutions to grant permission on the basis that these types of sites are not mentioned in the new definition of deliverable, even where those sites had in fact received planning permission by the time of the inquiry.

Historically, these sites have been an important component of supply, and the indication that they should not be included as a matter of principle is likely to have a very significant effect on the ability of many local planning authorities to demonstrate a five-year supply.  

Where a five-year supply cannot be demonstrated, there is a presumption in favour of granting planning permission. Requiring sites to meet a higher hurdle to be included in the five-year supply was presumably intentional, and is perhaps one way in which a boost to housing delivery will be realised.

Sarah Reid is a barrister with Kings Chambers specialising in planning and environment, and one of The Planner’s Women of Influence

Photo | Shutterstock


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