Landmark Chambers


Planning appeal decision following Court of Appeal judgment in St Modwens

DATE: 06 Nov 2017

In a decision letter dated 2nd November 2017, Inspector George Baird BA(Hons) MRTPI dismissed an appeal by Gladman Developments Limited against the decision of the East Riding of Yorkshire Council to refuse planning permission for up to 380 residential dwellings, including up to 25% affordable housing; a local centre with a children’s day nursery; a convenience store with up to 280 sq. m of retail floor space; and a 60 bed care home. A partial award of costs was also made in favour of the ERoY Council.

This decision is significant for two reasons. First, it was the third occasion in 2017 that the ERoY Council have successfully defended a challenge to their five-year housing land supply (“5YHLS”) at an appeal by Gladman.  Second, the decision is one of the first planning appeal decision to consider the recent judgment of the Court of Appeal in St Modwen v SSCLG & ERYC [2017] EWCA Civ 1643 (the Inspector closed the inquiry in August, but permitted written representations on the Court of Appeal decision at the request of the parties).

The central issue was whether the ERoY Council could demonstrate a 5YHLS. This had been the subject of two previous unsuccessful challenges by Gladman at earlier appeals for residential development at South Cave and Holme-on-Spalding Moor (see news articles here and here respectively).

Gladman produced “updated” evidence which it said demonstrated that a number of allocated sites in the local plan which did not currently benefit from planning permission should not be included within the housing land supply. In particular, Gladman focussed on attempting to remove sites from the housing land supply which had been allocated in previous local plan iterations but had not been brought forward and other sites which it considered did not have any “developer interest” such as to indicate that a planning permission application was likely to come forward.  These points were presented alongside evidence that the expected housing delivery rate was not being met by the current rate of delivery, i.e. that predicted supply in the local plan was not materialising.

The Inspector rejected these arguments, applying the decision in St Modwen and Wainhomes (South West) Holdings v SSCLG [2013] EWHC 597 (Admin).  In particular, the Inspector highlighted that “for a site to be deliverable, it should be capable of being delivered not that it will be delivered. Thus as the appellant accepted the decision maker has to have clear evidence to show that there is not simply doubt or improbability but rather no realistic prospect that the sites could come forward within the 5-year period”.

Applying this approach, the Inspector dismissed any criticism of allocated sites which had appeared in previous iterations of the local plan, but which had not been delivered because there had been a thorough site-by-site assessment of deliverability as part of the recent local plan examination process. Accordingly, despite actual delivery appearing to fall short of the expected housing delivery trajectory, the Inspector held that that there was a 5YHLS:

“In light of the St Modwen Developments judgement, the trajectory identifies what is likely to happen and the deliverable supply is an expression of what is capable of happening. Trajectory does not, in my view, go to the process required to determine whether a site is deliverable under the terms of Framework policy. Rather it is, as the St Modwen Developments judgement identifies, that past shortcomings in the supply of land are to be addressed in the manner required by the Framework i.e. through the application of a 20% buffer. In my view not achieving the trajectory does not go to the determination of whether a site is, in planning policy terms, deliverable. Drawing this together, and as reflected in the South Cave10 and Holme-on-Spalding Moor decisions11, the exercise I have to undertake is to determine whether a site is capable of being delivered as opposed to establishing whether it will be delivered in the 5-year period.”

After concluding that the ERoY Council could demonstrate a 5YHLS, the Inspector held that the proposed development was contrary to several key overarching policies in the recently adopted local plan and that this conflict was not outweighed by other material considerations. This orthodox conclusion is noteworthy because Gladman produced considerable evidence on the purported benefits of the proposed development, in particular affordable housing, but the Inspector attributed little weight to these arguments, holding that “the majority [of benefits] are generic and non-specific and are no more than would be expected from any development. As such these benefits attract little positive weight”. 

Finally, a partial award of costs was made in favour of the ERoY Council, reflecting the costs of defending the challenge to its 5YHLS. The Inspector held, following a similar costs decision at the Inquiry at Holme-on-Spalding Moor, that the challenge to the 5YHLS was unreasonable because Gladman had produced no materially new evidence which had not been before the earlier Inspectors who had dismissed the same challenge.  Moreover, the evidence which Gladman claimed was new and previously unconsidered “could not reasonably amount to the clear evidence required”.  

The appeal decision can be downloaded here and the costs decision can be downloaded here.

Charles Banner and Matthew Henderson appeared for the East Riding of Yorkshire Council at the two week inquiry in August.