The Meaning of “Persistent under delivery”

Tue, 10 Dec 2013

Cotswold District Council v Secretary of State for Communities and Local Government  and Fay and Son and Hannick Homes and Development Limited [2013] EWHC 3719  (Admin)

The Meaning of “Persistent under delivery”

Two challenges to decisions of the Secretary of State were heard by Mr Justice Lewis in respect of the ‘Tetbury appeals’ in which planning permission was granted for housing development within the AONB in the Cotswolds.

The Secretary of State was represented by Richard Kimblin in both sets of proceedings.  Hannick had been represented by Christopher Young at inquiry and by Peter Goatley representing them in the proceedings.

The case deals with the approach to paragraphs 47 and 49 of the Framework where there is an issue as to the extent of a local authority’s failure to maintain a five year land supply - namely the ‘buffer’ question - 5% or 20%?

The first issue in the case was: Did the inspector, and therefore the Secretary of State, misconstrue paragraph 47 of the Framework and, in particular the meaning of  “persistent under delivery of housing ” in the Highfields and Berrells Road appeals?

Section 6 of the Framework deals with delivering a wide choice of high quality homes. Paragraph 47 is of particular importance to these appeals and provides as follows:

“To boost significantly the supply of housing, local planning authorities should:

·      use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

·      identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;

·      identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;

·      for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and

·      set out their own approach to housing density to reflect local circumstances.”

The judge explained that: Paragraph 47 is directed towards the obligations of local planning authorities in preparing their development plans. However, the Structure Plan in the present case expired in 2011. The Council has not yet adopted a Local Plan identifying its housing requirements for the next local plan period or the next five years. In dealing with a planning application, however, the Council, and an inspector or the Secretary of State on an appeal, will have to address the question of what the Council’s five-year housing requirement is likely to be and whether the Council has significant supply of housing land to meet that requirement as that will be a material consideration in considering whether planning permission should be granted.  (para 10)

The essence of the judgment so far as ‘persistent under delivery’ was concerned is:

Paragraph 47 is to be interpreted, and applied, having regard to its purpose and context. The purpose of the Framework is to set out the Government’s view of what constitutes sustainable development in England. That includes providing the supply of housing required to meet the needs of present and future generations: see paragraphs 6 and 7 of the Framework. Section 6 of the Framework is concerned with the government’s view of how local planning authorities should deliver appropriate housing. The immediate context of paragraph 47 of the Framework is therefore concerned with what local planning authorities should do to boost significantly the supply of housing, as appears from the opening words of paragraph 47. The first bullet point is concerned with ensuring that Local Plans meet the full, objectively assessed needs for market and affordable housing. That is, it is dealing with the assessment of need for the period after the end of the Structure Plan and during the currency of the next Local Plan (to cover an appropriate time scale, preferably a period of 15 years: see paragraph 157 of the Framework). The second bullet point is concerned to ensure that local planning authorities identify a “supply of specific deliverable sites sufficient to provide five years worth of housing” with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market. Where there has been “a record of persistent under delivery of housing” local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land. (para 46)

In the context of paragraph 47, the reference to “persistent” under delivery of housing is a reference to a state of affairs, under delivery of housing, which has continued over time. A decision-maker would need to have regard to a reasonable period of time measured over years rather than looking at one particular point, to ensure that the situation was one of persistent under delivery rather than a temporary or short lived fluctuation. The precise period of time would be a matter for the judgment of the decision-maker. There has to be a “record” of under delivery of housing. That points towards assessing previous performance (i.e. the performance in the period prior to the expiry of the Structure Plan and before the new Local Plan should have come into force). The need to establish a record of under delivery indicates there will need to be some measure of what the housing requirements were, and then a record of a failure to deliver that amount of housing persistently, i.e. a failure continuing over a relevant period of time. A decision-maker would be entitled to take the figures in the previous Structure Plan as a measurement of what the housing requirement was in order to assess whether there has been a record of persistent under delivery of housing. However, the requirement is that there has been a record of persistent under delivery of housing (not a failure to meet the targets set out in the Structure Plan). It would, in my judgment, be open to a decision maker to identify an appropriate measure of housing needs either separately from the Structure Plan or as a means of reinforcing conclusions drawn on the basis of the Structure Plan. (para 47)

Please click here to view Richard Kimblin's profile.

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