Five Year Supply successfully challenged at Milton Keynes

Only six months and six days after the Local Plan for Milton Keynes was adopted, an appeal decision on 26th September 2019 found the Council could not demonstrate a five year supply of housing land and accordingly key policies must be considered out-of-date.  Inspector Sargent found both of the linked appeals for 50 and 51 dwellings to be contrary to the Development Plan, but considered that the lack of housing land supply was a material consideration that tipped the balance in favour of allowing housing.

The 2019 Framework allows a new approach

The Inspector noted that the National Planning Policy Framework had changed since the Local Plan examination on the Plan for Milton Keynes.  The February 2019 Framework updated the definition of a deliverable site, creating a material difference between the assessment of housing land availability before and after the Framework's update in Feb 2019.  On this basis, the Inspector did not appear to be concerned that his Decision would contradict the Local Plan Inspector's findings published only seven months previously.

Definition of a deliverable site

The definition introduced in the February 2019 Framework requires 'clear evidence' that sites with outline planning permission will begin on site within 5 years.  The Framework does not define what constitutes 'clear evidence', however Planning Practice Guidance provides some advice as to what such clear evidence may include (PPG paragraph ID:68-007-20190722). 

Proformas in 5 year supply

On this basis the Inspector accepted that pro formas, sent by the Council to landowners and developers to ask them to confirm their anticipated build-out rates, could be seen as clear evidence.  The Inspector did not accept the appellants' argument that proforma responses tended to only confirm the Council's expectations of delivery, saying, "I have no reason to consider that those who returned the pro forma would not modify the information if they considered it misleading or inaccurate."

Sites struck off the Five Year Supply

Going through a table of 51 contested sites, no proforma had been submitted for 4 sites. Of the list of outline consents, one had lapsed, another was over 15 years old.  Four more sites were over 10 years old.  Another gave the start date as unknown and another had been completed by a developer with no control of the site.  Two had reserved matters applications on only a small area of the site, with no evidence on the remaining land for 1,034 houses.  For these sites the Inspector concluded they could not provide 'clear evidence' of their deliverability and reduced the supply by a total of 2,717 houses.  This brought the five year supply figure down the Council's claim of 6.42 years to just over 5 years' supply.

Discount for Optimism Bias

The appellants were partially successful in arguing that the Council had consistently overestimated the expected delivery, and that a 25% 'optimism bias' should therefore be applied.  The Inspector accepted the principle of an optimism bias, but modified it to balance past performance against the increasing policy pressure for increased delivery. He settled on a midway point between the Council and the appellants positions, which reduced the five year supply to 4.4 years.  This discount was crucial to the appeal result.

Appeal procedure for considering housing supply

The Council had written to the Inspectorate over 2 weeks after the close of the Hearing to imply that an appeal Inquiry may have been a more suitable way to test the housing evidence than an appeal Hearing.  The Inspector gave this argument short shrift, noting that the Council had not challenged the procedure either at the start of the Hearing or at any point before the close of the appeal Hearing.

It was noted that even at appeal Inquiries the housing land evidence had been explored in a Hearing format.  The Inspector was clear that a Hearing was appropriate for exploring housing supply.  A full day had been devoted to a forensic examination of the disputed land supply; there was no need for a Public Inquiry.

Neighbourhood Plan twist

In a final twist, the appeal Decision was issued the same day as the referendum on the Hanslope Neighbourhood Plan.  Had the Decision been only one day later, in the aftermath of a successful Neighbourhood Plan referendum result, the planning balance could well have been different.

The two adjoining sites formed linked appeals, APP/Y0435/W/18/3214365 and APP/Y0435/W/18/3214564.

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