In a decision issued on 21 August 2017, following a four day public inquiry in June 2017, Planning Inspector Olivia Spencer BA BSc DipArch RIBA dismissed an appeal by Gladman Developments Limited against the refusal of planning permission by East Riding of Yorkshire Council for 175 residential dwellings (including 25% affordable housing) on land to the South of Back Lane, Holme-on-Spalding-Moor (“HOSM”). The proposed development was located in the countryside, on an unallocated site outside, but adjacent to, the settlement boundary for HOSM.
Gladman advanced two main arguments at the Inquiry: (1) that the Council did not have a five-year housing land supply, therefore the tilted balance in NPPF para. 14 was engaged; and (2) that in any event, there were other material considerations which outweighed any breach of the development plan. Both arguments were rejected by the Inspector.
The context of this appeal decision was particularly significant. In particular:
- The Local Plan Strategy Document and Local Plan Allocations Document were both recently adopted in mid-2016, having been found sound by the Local Plan Inspector who also concluded that the Council could demonstrate a 5YHLS. Subsequently, the Local Plan won both the plan-making category and overall Editor’s Award at Planning Magazine’s Planning Awards in June 2017.
- Three months before the Inquiry in March 2017, a different Inspector had dismissed another appeal by Gladman relating to a residential development at South Cave, again adjacent to but outside the settlement boundary. The Inspector in the South Cave appeal found that the Council could demonstrate a 5YHLS.
Gladman’s main attack on the 5YHLS was directed at local plan allocation sites where no planning application had yet been received and which were not under the control of developers or subject to what Gladman termed “developer interest”. It was alleged that the lack of planning activity or developer interest, coupled with fact that these sites had previously been considered deliverable by the Council in earlier iterations of its SHLAA but had not in fact been delivered in the timescale indicated by those earlier SHLAAs, meant that the sites should no longer be considered deliverable and should be discounted from the 5YHLS.
The Council submitted that this applied a more exacting approach to deliverability of Local Plan allocations than the relevant provisions of the NPPF and PPG required. In particular, it submitted that, following the judgment of Ouseley J, in St Modwen Developments Limited v SSCLG  EWHC 968 (Admin), there was an important distinction between deliverability and actual delivery – the former (argued he Council) did not require certainty or even probability that a site would in fact be delivered within 5 years but rather that it was capable of being delivered. Further, the Council submitted that the effect of Wainhomes (South West) Holdings Limited v SSCLG  EWHC 597 (Admin) and the PPG at 3-031 and 3-033, the allocation of a site in an up-to-date Local Plan indicates that the site is deliverable unless there is clear evidence that there is no realistic prospect of the site being delivered within five years.
The Inspector found in favour of the Council and rejected Gladman’s approach focused on so-called “developer interest”. In particular at  the Inspector held:
“I agree therefore with the conclusions of the South Cave Inspector that neither an absence of delivery in the past, the lack of planning activity nor inclusion in the Prospectus [of deliverable sites in the district produced by the Council] indicate in themselves that allocated sites in this case are undeliverable. The appellant’s contention made in respect of the vast majority of the 66 [disputed] sites […] that a failure to demonstrate active developer interest or planning activity on all or parts of the sites either now or in the past is an indication that they are not deliverable within the 5 year period is not therefore well founded.”
The Inspector went on to conclude that the proposed development was not in accordance with the development plan, because it was located outside of the settlement boundaries and thus in conflict with the Local Plan spatial policies. At para. 28-29, she rejected Gladman’s contention that this conflict was outweightd by the benefits associated with delivery of market and affordable housing, construction jobs, increased local spending and ecological improvements:
“28. All of these [benefits] however would be equally applicable to many other developments in other locations including those in higher tier settlements where occupiers would have access to significantly better and more extensive facilities, services, jobs and sustainable transport choices. They are generic, non-specific benefits. […]
29. The essential point here is that whilst the benefits referred to could contribute in varying degrees towards sustainable development, they do not address the fundamental issue in this case, that of location. The Local Plan is predicated on securing sustainable development and achieves this in large part by ensuring that the right level of development takes place in the right place. The benefits put forward by the appellant are no more than would be expected of almost any housing development and do not provide specific justification for the development proposed in the location proposed. They do not therefore in my judgement amount to other considerations sufficient to outweigh the presumption in favour of the Development Plan.”
This Inspector also ordered Gladman to pay the Council’s costs in relation to the 5YHLS issue on the basis that it was unreasonable to argue this issue in near identical form to that dismissed by the Inspector at the South Cave inquiry, without any material new site-specific evidence of a change in circumstances since that decision.
The appeal decision can be downloaded here and the costs decision here. They are of interest in relation to (i) the approach to assessing deliverability within the 5YHLS of local plan allocations (ii) the weight to be given in the planning balance to breaches of spatial planning / settlement boundary policies in up to date, recently adopted local plans and (iii) the approach of the Inspectorate to consistency of decision making in the context of a recent appeal raising very similar issues in a very similar context.
A third appeal by Gladman, relating to a proposed 380 dwelling residential-led development (also including a care home and a convenience retail unit) near Pocklington, was the subject of a two week inquiry in August 2017. Similar issues were also raised in that appeal. A decision is due in November 2017.
Charles Banner and Matthew Henderson (a pupil barrister due to commence full-time practice at Landmark in September 2017) appeared for East Riding of Yorkshire Council at the HOSM and Pocklington inquiries. Charles Banner also appeared for the Council at the South Cave inquiry.