High Court: 'deliverability' of planning permission not normally material

Out-Law News | 15 Nov 2019 | 12:30 pm | 2 min. read

Whether or not a proposed development is actually capable of being delivered will not normally be a material consideration for the purposes of granting planning permission, the High Court in England has ruled.

Mr Justice Ouseley said in a recent case that 'deliverability' in this sense was only relevant "where difficulties of implementation are relevant to the planning merits of the decision". He gave as an example the scenario where there are competing potential sites for a single development opportunity. Here, "the ability of one to meet the need through implementation and the difficulties of the other to do so are plainly material", he said.

"The law…means that, in general, the question of whether a proposal can be implemented is irrelevant to the decision whether to grant permission," he said. "There is no legal requirement that planning permission be refused unless a developer commits itself to implementing a proposal."

Mike Pocock

Michael Pocock

Partner

The decision sets out a useful reminder that deliverability will not normally be a material consideration unless there are competing sites for a single opportunity.

"I cannot discern here what material planning consideration could warrant a refusal of permission on the grounds that the proposal could not be implemented. There were no competing sites. There was no competing proposal for this site which could find greater favour with Homes England or the local bus company, which this permission might stultify. There was no suggestion that an unimplemented planning permission would in some way blight the site or discourage other proposals with better prospects," he said.

Planning law expert Mike Pocock of Pinsent Masons, the law firm behind Out-Law, said: "The decision sets out a useful reminder that deliverability will not normally be a material consideration unless there are competing sites for a single opportunity. 'Deliverability' in this context should be read as whether a permission is capable of being implemented and not be confused with other recent press coverage around the meaning of deliverability in the NPPF in a housing context".

The developer in this case, Satnam Millenium Ltd, was refused planning permission by Warrington Borough Council (WBC) for what it described as a "new residential neighbourhood" of us to 1,200 dwellings and associated facilities. Satnam appealed, but its appeal was dismissed first by an independent planning inspector and then by the communities secretary.

Satnam then appealed to the High Court on four grounds: that the secretary of state had misinterpreted or misapplied that presumption in favour of sustainable development in the National Planning Policy Framework (NPPF); that he had erred in law on the deliverability point; that he had erred in law by applying the criminal standard of proof to the assessment of traffic impact at the site; and that the planning inspector had shown 'apparent bias' in his conduct during the inquiry and a visit to the site. The High Court quashed the decision on the first two grounds, but dismissed the second two.

The judge's conclusions on the 'apparent bias' point were also of interest as a useful summary of the law in this area, Pocock said. Satnam's claims that the inspector had demonstrated partiality and "undue familiarity" towards local residents and protesters during the planning inquiry and site visit were dismissed by the judge, who said that the inspector had "showed a determination to be fair and effective" and described some of Satnam's arguments as "rather petty, and indeed overly critical".

"Nothing which happened during the inquiry sessions could warrant any fair-minded observer alleging, let alone concluding, that there was a real possibility of bias," the judge said. "I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants."

In addition, the judge said that had there been "anything of real substance" in Satnam's claims, the developer would have "waived the right to complain about them" by not raising them as they arose.

Pocock said: "The case also provides a useful explanation and analysis of the law around bias, something which we haven't seen as a recent focus in cases before the courts".

"Planning inspectors are facing greater pressure generally with the Rosewell Report reforms requiring speedier decision making," he said.