14 August 2019

On 22 July 2019, the government published new and updated Planning Policy Guidance (PPG) on a number of topics, including clarification on how the relevant paragraphs of the National Planning Policy Framework (NPPF) should be interpreted in relation to the five-year housing land supply (5YHLS).

What is a 5YHLS and how is it confirmed?

Paragraph 73 of the NPPF sets out that local planning authorities (LPAs) are required to “identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement”. The aim of this is to provide an indication as to whether there are enough available sites to meet housing requirements set out in adopted strategic policies for LPA for the following five years.

LPAs can demonstrate a 5YHLS through using the latest available evidence, such as a Strategic Housing Land Availability Assessment, or by ‘confirming’ it. Until the publication of the recent guidance, there was some uncertainty surrounding the interpretation of this and how LPAs could confirm their 5YHLS.

What does the PPG say?

The PPG indicates that there are two ways for an LPA to confirm its 5YHLS. This can either be through a recently adopted plan or by using a subsequent annual position statement (APS):

  • In order for an LPA to confirm its supply through a recently adopted plan, the LPA will need to be clear it is seeking to confirm the existence of its 5YHLS as part of the plan-making process at draft plan publication stage. The LPA will also need to apply a 10% buffer to its housing requirement to account for potential fluctuations in the market over the year. Where the housing delivery test indicates delivery has fallen below 85%, a 20% buffer should be used. After the examination, the Inspector’s report will provide recommendations in relation to land supply. Where an LPA accept these, it can confirm it has a 5YHLS in a recently adopted plan. It is important to note that this option is not available to plans adopted under the transitional arrangements relating to the 2012 NPPF even if they are recently adopted.
  • Where an LPA has a recently adopted plan (notably including those adopted under the 2012 NPPF), it can notify the Planning Inspectorate of its intention to confirm its 5YHLS through an APS by 1 April each year. The LPA will then need to carry out an engagement process and submit the statement for review by the Planning Inspectorate by 31 July the same year.  A recently adopted plan is defined in footnote 38 of the NPPF and includes: a plan adopted between 1 May and 31 October will be considered ‘recently adopted’ until 31 October of the following year and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October in the same year.  The guidance sets out what the Planning Inspectorate considers and what information needs to be included in APSs as well as the scope of the engagement to be carried out. 

How does a 5YHLS affect decision taking? 

Paragraph 11(d) of the NPPF sets out how the presumption in favour of sustainable development should be applied where there are no relevant development plan policies or where the relevant policies are out of date, which includes the situation where a local authority cannot demonstrate a 5YHLS. It states that planning permission should be granted unless the (i) the application of NPPF policies relating to the protection of areas and assets of particular importance provide a clear reason for refusing the development purposed or (ii) the adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the policies as a whole. On the other hand, paragraph 11(c) clearly sets out that proposals that accord with up to date plans (and 5YHLSs) should be approved without delay.

This is clearly an area which is still open to differing interpretations as the High Court has handed down three key judgments over the last few weeks:

  • The judgment in Monkhill Limited v Secretary of State [2019] EWHC 1993 (Admin), handed down on 24 July, is a recent example of how paragraph 11(d) can operate in practice. As the LPA could not establish a 5YHLS, paragraph 172 of the NPPF requiring great weight to be given by planning decision makers to conserving and enhancing landscape in areas of outstanding natural beauty and other protected areas, was capable of providing a clear reason for refusing an application under paragraph 11(d). It therefore disengaged the titled balance in favour of sustainable development.  
  • Another recent judgment, handed down on 8 July, which deals with paragraph 73 of the NPPF is Tewkesbury Borough Council v Secretary of State [2019] EWHC 1775 (Admin). This decision relates to a planning appeal where an Inspector upheld the LPA’s refusal of permission but made adverse findings in relation to the LPA’s 5YHLS. The decision did not allow the LPA to challenge the adverse findings made by the Inspector in relation to the 5YHLS by way of judicial review as they did not fall within the class of exceptional cases where the determination of an academic dispute about the reasons for a decision, rather than the decision itself, was warranted. 
  • The most recent judgment of Peel Investments (North) Ltd v (1) Secretary of State (2) Salford City Council [2019] EWHC 2143 (Admin), handed down on 2 August, considers the wider question of whether  a policy should be considered out of date under paragraph 11 if the wider development plan has expired. The Court held that the NPPF did not suggest that it should be and that a general policy relating to environmental protection, which remained consistent with the NPPF, could continue beyond the end of a plan period. The question of whether a policy was out of date was a matter of fact or fact and judgement. In addition, the Inspector’s conclusion that the LPA could also demonstrate a 5YHLS was reasonable, meaning there was no justification for determining the appeal other than in accordance with the development plan under paragraph 11(c) of the NPPF.

These cases all highlight the importance of being able to demonstrate an up to date valid 5YHLS. The updated PPG assists LPAs in clearly setting out how their supply can be confirmed, however the timing implications will need to be borne in mind. 

If you have any queries regarding the 5YHLS and the NPPF or housing delivery more generally, please contact Gary Soloman or Sarah Sutherland in the Planning and Compulsory Purchase team at Burges Salmon.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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