In this article John Pugh-Smith addresses the issues and challenges arising from the recent High Court decision in Barrow Parish Council v Secretary of State for Communities and Local Government

For everybody caught up in the current outworking of the housing policies of the National Planning Policy Framework (NPPF) the hot debate with each application is whether (a) the local planning authority (LPA) has at least a five year supply of deliverable housing sites and (b), if not, whether other sites should be released. However, even with the imperative to achieve speedy decision-making to help deliver economic growth the heart of the NPPF is concerned about the achievement of sustainable development, the so-called “golden thread”, based upon the three ‘pillars’ of social, environmental and economic considerations; and so absence of harm has to be weighed in the balance.

In Barrow-Upon- Soar Parish Council v (1) Secretary of Stage for Communities & Local Government, (2) Charnwood Borough Council, (3) Jelson Limited [2014] EWHC 274 (Admin) the Parish Council challenged the Secretary of State’s decision to grant planning permission to Leicestershire housebuilder, Jelson Homes, on the basis that Jelson had not satisfactorily demonstrated that a major sewerage problem could be sufficiently overcome to allow its 300 house scheme to proceed promptly. The Parish Council had argued that there must be a realistic prospect that housing could be delivered on the site within that period if Jelson were to benefit from the presumptions  in both NPPF paras. 14 and 49. Accordingly, the Secretary of State’s Inspector should have examined the issue more rigorously and not simply accepted Jelson’s word that the problem would be solved. However, Mr Justice Collins decided that the imposition of a planning condition, at the request of the Environment Agency, restricting the development from starting until the issue had been addressed was an adequate safeguard. and did not warrant the outline permission being quashed.

The judgment is a tantalizing and frustrating one; for while it appears to endorse the appropriateness of the “realistic prospect” test it leaves, unanswered, a number of highly important questions. The first is what is required of the developer applicant? The judge remarks: “It is of course for an applicant to demonstrate that permission should be granted, but I am far from persuaded that it is necessarily appropriate to talk in terms of burden of proof”. The second is what does the developer applicant need to establish where reliance is placed upon NPPF para. 49? It was suggested by the Defendants’ counsel for the Secretary of State and Jelson that as there is a general requirement to ‘boost significantly the supply of housing’ provided that the location and characteristics of the site do not indicate that the development has adverse impacts which mean it is not sustainable, development can properly be approved. Even if the meaning of deliverable in the footnote to NPPF para. 47 can be generally be imported into NPPF para.173 (deliverability and viability), there is no requirement that in order to be regarded as sustainable the development must be completed within 5 years. At most, it requires a reasonable time which can properly identified by conditions. Furthermore, since the objective of the relevant bullet point in NPPF para.47 is the identification of particular sites which can produce a five year supply, the precise definition of deliverable in its limitation to a realistic prospect of delivery within five years is not material in relation to sites which are not within the annual five year requirement. However, upon closer analysis, such submissions cannot be right if the significant ‘boost’ is to be in the supply of built housing rather than simply to the number of residential permissions. Given the political castigation of landowners for “sitting on permissions” how can interpretation of the NPPF be other than about the achievement of provision in terms of bricks and mortar rather than on paper.

The third question arises from the clear tension, between one aspect of national policy and another. If there needs to be a realistic prospect of some built development within the life of the outline permission (five years) why should the test for the imposition of a negative condition (required to overcome a significant infrastructure constraint) be placed on a different footing? In this regard, Paras. 38 to 40 of the Annex to Circular 11/95 deal with the use of conditions which depend on others’ actions. Paragraph 40 still reads: “It is the policy of the Secretaries of State that such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed within the time-limit imposed by the permission.” Sewage connection is even cited as one example where such considerations need to be borne in mind. However, by letter dated 25th November 2002, the Office of the Deputy Prime Minister notified all chief planning officers that Para. 40 should be amended as follows: “It is the policy of the Secretary of State that such a condition may be imposed on a planning permission. However, when there are no prospects at all of the action in question being performed within the time-limit imposed by the condition, negative conditions should not be imposed. In other words, when the interested third party has said that they have no intention of carrying out the action or allowing it to be carried out, conditions prohibiting development until this specified action has been taken by the third party should not be imposed.” Furthermore, this amendment, whilst still in force, has not been placed into any up-date of the Circular and is not mentioned in the Planning Encyclopaedia. Leaving aside these presentational shortcomings, was the point simply overlooked by the civil servants? For how can the ‘no prospect’ test be reconciled with the NPPF;s imperatives? How can ‘realistic prospect’ of some delivery be achieved if the outworking is left to the discharge of conditions within the life of the permission (or its necessary extension(s))? In the Barrow case, the situation was, seemingly, all the more stark and absurd with the admitted absence of any approaches being made to either of the two key bodies, Severn Trent Water and Network Rail, by the Borough Council or Jelson Homes.

So, by way of conclusion, how should the reasonably prudent developer applicant present his NPPF para. 49 case? In the writer’s view “realistic prospect” must embrace the presentation of a delivery programme demonstrating, on a time line, when necessary infrastructure will be provided and when built- units are expected to be delivered. After all, if the LPA is obliged to produce trajectories of anticipated delivery as part of its housing land supply assessment why should that exercise not be based upon the best evidence available? Equally, as the NPPF encourages sustainable development to be achieved through properly planned, deliverable and viable schemes, then, where earlier releases are required in  the public interest that must carry an additional requirement on the promoter to prove its case, and, for the decision-maker to apply due rigour upon examination. Sadly, as with so much of this Government’s planning policy, expediency and lack of “joined up” thinking appear to be leading towards an unpopular, even a negative legacy, for the current as well that ‘future generation’ for whom we are urged to provide sustainable development.