[2025] EWHC 2127 (Admin)

The Government’s PPTS provides that local planning authorities should, in producing their Local Plan: (a) identify and update annually, a supply of specific deliverable sites sufficient to provide 5 years’ worth of sites against their locally set targets. Footnote 4 to that provision states:

“To be considered deliverable, sites should be available now, offer a suitable location for development, and be achievable with a realistic prospect that development will be delivered on the site within five years. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within 5 years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.”

At DL 31, the Inspector said as follows:

“The Council claims a total of 69 pitches. However, more than half of this figure - 35 pitches - is made up of current planning applications. As the Council accepted at the hearing, it is unable to say if planning permission will be granted for these. Consequently, these sites do not meet the definition of 'deliverable' in footnote 4.”

The Claimant contends that the Inspector erred in concluding, at DL 31, that the 35 pitches which the Claimant said it could supply were not “deliverable” within the meaning of Footnote 4 of the PPTS. The error lies, submits Mr Goodman, in an erroneous self-direction of law to the effect that planning permission had to be in place or would be granted before a site could be considered deliverable.

I consider this ground to be based on a misreading of DL 31. There might have been some substance to the Claimant’s point about an erroneous self-direction had the analysis of deliverability commenced and ended with DL 31. It is clear from authority that such permission is not a necessary prerequisite to a site being deliverable, and nor must it necessarily be certain or probable that housing will in fact be delivered within 5 years for it to be so: see Wainhomes (South West) Holdings Limited v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin) at [34(i)] and St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2018] PTSR 746 at [38]. However, the Inspector’s analysis was not so truncated. The Inspector went on at DL 32 to 36 to consider the evidence provided in order to reach an overall conclusion on deliverability that was not based solely on the Council’s inability to say if planning permission would be granted for these sites. Had the Inspector’s view been that the only consideration was whether planning permission had been or will be granted, there would have been no need for the Inspector to consider the other matters that he did. That he did so indicates that there was no misdirection in law. The Claimant’s argument, it seems to me is based on reading one passage of the DL in isolation, which, it need hardly be stated, is not the correct approach.

Here, the Inspector found, having considered the evidence and the Council’s assertions as to supply, that “there is minimal evidence to support any assumption about the likely outcome of the current applications or future windfalls. Consequently, I am not persuaded that either of these matters show that sites are 'available now, offer a suitable location for development, and [will] be achievable with a realistic prospect that development will be delivered on the site within five years”. That was a matter of planning judgment, which was open to the Inspector. It is not arguable that the Inspector’s decision discloses any error of law.

The Claimant also argues that it is not correct to suggest (as the Defendants do) that the Claimant did not supply any evidence that the sites were available, and seeks to rely on the fact that it supplied evidence of the sites under consideration as planning applications. It is said to have been “implicit” in such material that there was a realistic prospect of the relevant pitch becoming available even if that could not be stated with certainty. However, there was, as the Inspector noted, “minimal evidence” in support of the Claimant’s assertions in this regard. In fact, the Claimant’s position before the Inspector was that it was “unable to say” if planning permission would be granted for more than half of the 69 pitches being claimed. The Inspector was entitled to consider this evidence to be inadequate or minimal. In so concluding, the Inspector was not applying a test of certainty or even probability, but was merely stating that the evidence was not specific or such as to support (even to some lesser standard) the assertion that planning permission was bound to be granted.

For these reasons, I consider Ground 2 also to be unarguable. Permission is refused.