Re: NPPF replacing existing guidance - Public forum - Planning Advisory Service (PAS)

Two spring to mind: The Planning System : General Principles guidance will need revision when RSS eventually goes and some other parts need revising now in view of the Localism Bill (Other material considerations) and the NPPF. I have seen some interpretations of the NPPF suggest that the guidance on prematurity has been altered to allow it to become a reason for refusal on its own which runs counter to the advice in para 18 of the General Principles document. I don't share this interpretation of NPPF myself but I am just flagging it up. SHLAA Practice Guidance needs up-dating to reflect Policy 47 of the NPPF and the footnotes on what constitutes a deliverable site. My interpretation of footnote 11 is that the 5 year supply should only contain sites with planning permission (unless evidence demonstrates that the sites are unlikely to come forward) and that sites without planning permission should be excluded. However policy 48 allows back windfalls into the 5 year supply although compelling evidence needs to be demonstrated. My interpretation of this is that where some LPAs have included specific sites without permission in the 5 year supply, then unless they can provide compelling evidence to substantiate these individual sites then they can't be included and what policy 48 I think means is that a % allowance could be adopted for all windfalls based upon compelling evidence of historic windfall delivery.

Michael, You are of course correct that certain parts of some of the guidance still in existence are now out of date in relation to the NPPF. In any cases of conflict, the NPPF takes precedence. This does not necessarily mean the whole guidance note is out of date though. With regard to your interpretation of footnote 11 from para 47, it is not the intention of this footnote to restrict the 5 year supply only to sites with permission and that is not my reading of it. They should be available and suitable for development now, with a realistic prospect that housing will be delivered within 5 years. It is not a requirement that they should have planning permission now. Following on, your interpretation of 48 is also not one I agree with. It does indeed allow for windfalls to be included in the 5 year supply, as you say where there is compelling evidence that such sites have consistently become available and will continue to do so. This does not mean that any identified sites without permission should be excluded from the 5 year supply. The definition of a windfall site is in the gloassary. A site identified as available in the local plan process is NOT a windfall site, but may still form part of the 5 year land supply if it satisfies footnote 11, regardless of whether it has permission or not.

I assume GTAA guidance of Oct 2007 still applies then?

Yes Graham, it is still applies.

Micheal My interpretation of the prematurity rule is that, as Adam states, it supersedes any part of The Planning System : General Principles guidance with which it conflicts, as it is a more up to date document. Hence prematurity CAN be used as a reason BY ITSELF, indeed last Weeks Newmarket recovered appeal illustrated the SoS was already applying the policy despite two earlier successful legal challenges in Sandbach and Winchester (CALA) that it was unlawful. Those challenges are somewhat historic now as the redetermination will be under the new policy. Many of us said much confusion would be avoided if The Planning System : General Principles was updated and issued on same day as NPPF or within it. After all its origin was publication as the same day as PPG1. The government has a ready made draft in the abortive Development Management (now decision taking) PPS - and so it could be issued in days and should be to avoid confusion. Adams clarification on windfalls/glossary/ 'outside plan process' is useful. After all windfalls were dropped as part of the 5 years supply because of the problem of double counting with SHLAA sites, so Adam makes perfect sense. As I read para 48 it is an additional allowance for small (below SHLAA threshold sites) and by definition then these wont have been assessed as suitable etc. because by you cant predict the future and know where and when these small sites will be released. If a large windfall occurs it becomes what used to be known as 'another identified site' or now I presume as part of the future expected 5 year supply. Broadly a methodology would be assess historic completions of non garden sub SHLAA threshold sites'historic windfall delivery' and project forward based on expected revovery of housing market 'expected future trends,' I discussed at some length with DCLG this method (though there was some eyes glazing over) and I understand HBF have suggested something similar. Would be grateful for Adams views.

Well I don't want to undo the good work, but I do think it's important to clarify that windfall sites are not necessarily small sites. If a factory closes and the site gets redeveloped for housing, then that would be a windfall site (unless for some reason it had already been identified as available, which would be both risky and 'strange'). However, in terms of estimating future supply I think this will depend as much on your ability to really get into detail about potentially available sites, as much as trends. At one authority I worked at, myself and a colleague spent about 2 months travelling around the Borough with large scale maps checking any gaps in frontages, garage courts, and other potentially available land to assess their capacity. Following this, we applied any policy filters as well as trend information in order to arrive at a figure. I appreciate resources may mean that type of detailed exercise isn't going to be possible everywhere (anywhere?). The main point will be, if you don't feel confident you can assess potential future contributions, then you shouldn't be looking to factor them in to your 5 year supply. Comparing past trends, perhaps when the market was in a similar position will often be as good as you can get. You will never be coming up with a precise figure, so if you want to test assumptions and allow a 'plus or minus x percent' option, then I personally feel that would be appropriate. Those of you who believe windfalls provide a significant contribution will want to spend more time on this than those that don't.

Adam, I thank the key point is that sites identified in the local plan process are excluded from windfalls, windfalls of course can be large but the issue is about consistency of projections between identified sites and projections of 'everything else' - so if you assume that historic trends for such sites will continue this must be definition be double counting because the two categories will overlap and not be mutually exclusive. Your evidence base will be inaccurate. Remember there were very detailed discussions on this issue around PPS3 - though sadly everyone at DCLG who were involved in that have now left. This is a mathematical issue. Identified sites are a stock. Windfall sites are a flow. A site can either be be treated as a stock or a flow over an x-y time period but never both. (Kalecki - 'Economics is the science of confusing stocks and flows' - im also tempted to say policy planning planning is the science...) The projection method needs to be stock-flow consistent or you get mathematical errors (there are similar issues with empty homes but that's for another day). A simple example illustrates. Lets say every year a large windfall site occurs of 100 units. When reviewing the plan you identify 10 such sites in your shlaa, 1000 units. But if you also count this as 'predictable' supply and project forward - you have over counted by 1,000 units. When a site completes or meets the deliverability test you can either tick it off the identified sites stock, or the windfall sites flow - but NOT BOTH at the same time. I hope this helps, its a difficult and subtle point but v important otherwise plans will have a systemic under-supply of housing to meet identified need. We will have 5 years supply that runs out in three like we had in the 90s - this example illustrates why.

Absolutely! I don't think anyone is arguing that identified sites can be windfall sites too. At least, I hope not, as that would be contrary to the glossary. As soon as you start identifying sites in your shlaa they cease being windfall. I think the 'stock and flow' terms are a really useful way of thinking about this.

Thanks Adam Im not arguing contrary to the glossary, but i am saying you cant count any one site more than once and that is unclear from the glossary, its an errata issue. All it needs is adding (...no site should be counted more than once in a housing trajectory). Which is arguably too obvious a point to be worth saying. Otherwise its like the 1897 Indiana Bill redefining Pi as 3, government policy cannot redefine maths. If you are saying that the meaning of the glossary is X+2=X+1 then it follows that any proposition is simultaneously true and false. (Now don't be cynical about the NPPF) I wanted to do a fuller Dummys Guide to the stock flow issue - with reference esp to empty homes. To long for here - and besides wanted to do an animation :) so I hope you dont mind posting a link http://andrewlainton.wordpress.com/2012/04/02/stock-flow-consistent-treatment-of-empty-homes-planoraks-nppf/ If anyone thinks this is just for #planoraks think again as these errors are precisely why the treasury failed to predict the 2007 global meltdown. If you doubt me check out this huge intellectual barny between the worlds tow most famous economists over the weekend, where - rather astonishing - I was drafted in in support - http://www.debtdeflation.com/blogs/2012/04/02/blog-observations-on-krugman/#comments I would very much like to work with PAS on applying these tools to a range of trajectory issues - including some demonstrations of how to use open source software to do the hard work - if a funding source could be found.

Thanks Andrew. Personally, and if I may speak in favour of the NPPF here, I think the definition of windfalls is pretty clear. "Sites which have not been specifically identified as available in the Local Plan process". How you would then still double count SHLAA sites as windfall sites is a little unclear to me. I'm using 'SHLAA' as a proxy for 'identifying sites in the Local Plan process'. Is anyone identifying sites by means other than the SHLAA? I'm not including a 'call for sites' here, as I believe that's all wrapped up in the SHLAA package. If this is one of those 'if something is worth saying once....' moments, then let me repeat what you have also said, and what I believe the glossary to have said. If you identify a site in your SHLAA as available for development, then you cannot include it in your windfall allowance. I am aware of the politics (small 'p') of perhaps not identifying on a map/list a number of small sites in your SHLAA. However, if you know these exist and have therefore 'identified' them, they are not going to be windfall sites. Windfalls come from brownfield sites (not back gardens anymore) that are not identified. So, if it's in the SHLAA, it's not a windfall. It makes the issue of monitoring these rather important.

No im not saying the definition is unclear, I was reading the NPPF 'as a whole' cough cough and how that point needed to be made to avoid what I thought (wrongly) was your potential misreading of it. . Sorry i misread 'can' as 'cant' in your first para, and couldn't square it with the second - apologies. 100% agree with your last post. It stresses and important point that if you have an identified site not in a SHLAA which was published last year say you can either newly identify it for a SHLAA update, in which case you cannot count it again as a windfall, or not identify it and count it as a windfall. If you base your projections of windfalls on sites below the SHLAA threshold and keep large new sites always up to date in a continuous SHLAA update process you will never have this issue - another reason why calls for sites need to be always open.

Thanks Andrew, That's a relief. We appeared to be arguing about a point on which we both agreed, so now I know why :-)

Andrew/Adam, Sorry I didn't mean to initiate a long debate on windfalls but I find your interpretations fascinating. I think we all know what we mean by the term windfalls. My problem is how they can by definition be included within the 5 year land supply given the definition of deliverability in footnote 11. SHLAA sites can't be windfalls by definition. As such para 48 sits uneasily against the guidance in footnote 11 and I suspect it will lead to much debate across the Country as to how it has been calculated. Andrew, on your prematurity point, I would concur that NPPF trumps the advice in the General Principles document but obviously I haven't read the NPPF as comprehensively as you or maybe I'm just missing something obvious. Can you point to where the NPPF deals with prematurity to substantiate the point you are making. Thanks

The whole section on Local Plans makes no reference to a role in delivery of the Sustainable Community Strategy - deliberate ommission or covered by another piece of legislations/regs?

Apologies as I see the conversation has moved on a little since the discussions regarding prematurity but I'm unsure as to what the NPPF has changed. Andrew Lainton above comments: 'My interpretation of the prematurity rule is that, as Adam states, it supersedes any part of The Planning System : General Principles guidance with which it conflicts, as it is a more up to date document. Hence prematurity CAN be used as a reason BY ITSELF, indeed last Weeks Newmarket recovered appeal illustrated the SoS was already applying the policy despite two earlier successful legal challenges in Sandbach and Winchester (CALA) that it was unlawful.' I've looked at the Newmarket decision but can't see a lot of detail in the NPPF regarding prematurity. Is the change in stance more to do with the fact that Paragraph 72 of PPS3 is no longer in existence than anything it says in the NPPF? Or does it say something of significance regarding prematurity in the NPPF that I have missed? Thanks.

Russell, Yes hence my question to Andrew to clarify his interpretation of how the NPPF affects the issue of prematurity. I've spell checked the document and there is no reference to prematurity. Whilst the loss of paragraph 72 of PPS3 removes the advice that prematurity shouldn't be used on its own to refuse applications, the fact that prematurity doesn't even merit a mention in the whole NPPF doesn't suggest to me that there is any change in emphasis or policy. Indeed whilst the General Principles document is still extant and contains advice on how prematurity is to be addressed, the fact that it predates PPS3 and that the Government didn't alter paragraph 72 when it last updated PPS3 in 2010 seems to me to imply that the Government were not intending to change policy simply by the deletion of PPS3. If it had intended to change policy on prematurity in line with Andrew's thinking, then surely this would have been dealt with in the NPPF. I suspect that unless the government produces supplementary guidance along the lines Andrew suggests to up-date the General Principles document, then prematurity will be a matter that will continue to be debated at length through appeals and through the High Court.

Back to the 5 yr housing land supply debate, I have a perhaps tongue in cheek query: if sites identified in the SHLAA not allocated and without planning permission can be so certain to be delivered that they can be included in the 5 year supply, why does the principle of development on those sites need to be subsequently reflected in a Local Plan allocation , or need planning permission? Does a SHLAA go through the same tests as an planning application or Local Plan to earn this apparent equivalent status?

Geoff, tongue in cheek or not, I'd like to have a go at a reply if I may. Unless I missed it, there has never been anything to suggest that sites identified in the SHLAA must subsequently 'be reflected in a local plan allocation' (to use your words). Your SHLAA helps inform your housing supply evidence. Of course some of that supply may end up being an allocation in the plan, but it doesn't have to. The 'tests' you apply to sites, so that you can understand how likely they are to be both deliverable and developable are still relevant as far as I understand things. This information will help you determine when you think the sites will come forward. No doubt some (many?) of these sites will be relatively small, their constraints (taken in the round) and 'impact' (things they need to provide for in addition to the development itself) will be minimal. Assuming you have then had some kind of dialogue with the owners or developers of those sites, you should be in a position to determine if they are likely to come forward within the first 5 years. As for whether any SHLAA sites should still need planning permission, I suspect this is the truly 'tongue in cheek' part of your query. At the end of the day, your SHLAA is just a list of sites. It has quite a bit of very useful information behind it. The more informed it is, the better your position when having discussions about supply. However, it is never likely to be comprehensive, which is where windfalls come in (or not!)

Adam, Although Geoff's posting was tongue in cheek it does highlight the difficulty Councils have in using the SHLAA to evidence base the 5 year supply. I agree with your reply but it is important to differentiate the different time periods the SHLAA is dealing with as my posts have been specific to the first 5 year's supply given that there is an important difference between sites that are deliverable, those that are deevelopable and then broad locations etc. My point on windfalls being contradictory with the definition of deliverability is an important one as it means that where sites don't have permission either because the permission has lapsed or else there is no planning status, then in my opinion it is extremely difficult to define them as being deliverable. As such they must be treated as windfalls regardless of size. The NPPF doesn't radically change the position on windfalls as PPS3 allowed an allowance to be made in the first 5 years if robust evidence could be demonstrated having regard to historic delivery rates and future trends. Indeed I'm sure planning lawyers may argue that NPPF actually firms up the policy on windfalls as now the evidence has to be "compelling" and garden land can't be used. It will be for each Council to consider the contribution windfall sites from the categories listed in the NPPF have made to housing completions in past years against allocated sites and then to base the allowance upon the evidence but avoiding double counting against permissions in the 5 year supply. As such I'd fully concur with your final point which I take to mean that the better evidenced the SHLAA is the more robust it will be. Unfortunately my experience as someone who has had to analyse many SHLAAs throughout the country is that they vary widely in terms of methodology used, the strength of the evidence and the quality of the analysis. All of which explains why when scrutinized at appeal, many Inspectors have been critical of the robustness of the 5 year supply evidence and have in some instances excluded any site without planning permission and applied discounts to those that have permission. At the end of the day it is not an exact science and the level of resource needed to compile the necessary evidence can be considerable.

Michael. Thanks for that. In particular, thanks for your points on windfalls. It's important to understand what's included and what's not. Residential gardens,.as you say, can't be used, as 48 clearly states. The glossary talks about windfalls 'normally comprising previously-developed land'. This does not put garden land back on the table. You read the NPPF as a whole, and 48 could not be clearer. So whatever may be allowed to be included that is not previously developed land, garden land is not part of that allowance. If you think it is, simply re-read 48. In my opinion, the glossary is not contradictory. If your employer has a policy which states you should not use your car to commute to work, and also has a policy which states you should normally cycle, that second policy does not mean that if you are not cycling you may use your car. The phrase 'you should normally cycle', on its own, does suggest you could use your car when not cycling. However, having read the first statement, you know that you should not in fact use your car. So, having removed residential land from any calculation of windfalls (as 48 states), think about your contributions from previously developed land, and any other sources which can contribute to windfall sites (things like the odd never-developed plot in a housing area, for example). I appear to have laboured a point about which you, personally, are very clear on, so don't take this as a comment on your post per se. It's a point I wanted to make in the light of comments I have seen made elsewhere.

The preference to prematurity is in annex 1 para 216 - it doesnt use the term but the whole para is about prematurity. Adam your advice on windfalls (first sentence) is different from the official advice given by the hotline, to East Cambs just before the helpline introduced a policy of silence. Namely - from their contemperanious note "We can include an element of windfall for years 6-15. Key is to demonstrate a good provision of allocated sites. But can include an element of windfall based on local evidence. The Glossary definition is the key one. Windfall can be sometimes green or brownfield. Evidence will be key. However, para 48 provides a further constraint to the definition of windfall for the 5 year supply only (e.g. definitely can’t include residential garden land). For years 6-15 the definition of windfall can be wider." Is this advice now withdrawn as it has been widely emailed in the profession?

Andrew, para 216 reflects the advice in para 18 of the General Principles guidance though I do think it is interesting that the NPPF avoids specifically mentioning refusing applications on the grounds of prematurity especialy when Eric Pickles seemed to be keen to do so before the NPPF was published! Para 216 says that decision makers "may" give weight to emerging policies with the footnote stating that this is subject to other material considerations indicating otherwise. This isn't explained further but I think this could imply, amongst other things, that where there isn't a 5 year supply of land for housing the weight that should be attached to emerging policies should be tempered (to borrow a phrase used recently in a Secretary of State decision). All in all I do not believe that para 216 strengthens prematurity other than the deletion of para 72 of PPS3. In cases where the emerging plan is at an early stage in the process, para 216 doesn't to me suggest that prematurity can be given any great weight especially where other material planning considerations such as the state of the 5 year supply would indicate otherwise.

I'm preparing a policy toolkit for my colleagues in Development Management. Just by way of a quick checking exercise have I missed (or wrongly included) any major pieces of guidance from the below list that they should still be consulting prior to DCLG refreshing all extant PPG/PPS guidance (excluding circulars, letters to chief planning officers, coastal and minerals guidance): DCLG Plan Making Manual The Planning System: General Principles (2006) Planning Together: Updated practical guide for local strategic partnerships and planners (2009) Technical Guidance to the National Planning Policy Framework (2012) Planning Policy Statement 25: Development and Flood Risk - Practice Guide (2009) Planning policy for traveller sites (2012) Designing Gypsy and Traveller Sites: Good Practice Guide (2008) Strategic Housing Market Assessments: Practice Guidance (2007) Strategic Housing Land Availability Assessment: Practice Guidance (2007) Housing Market Information: Advice Note (2007) Identifying sub-regional housing market areas: Advice note (2007) Delivering Affordable Housing (2006) Preparing Design Codes - A Practice Manual (2006) English Heritage and CABE - Guidance on tall buildings (2007) By Design: Urban Design in the Planning System - Towards Better Practice (2000) Better Places to Live by Design: A Companion Guide to PPG3 (2001) Planning Policy Statement: eco-towns - A supplement to Planning Policy Statement 1 (2009) Planning Policy Statement: Planning and Climate Change - Practice Guidance (2007) Planning for Renewable Energy: A Companion Guide to PPS22 (2004) Assessing Needs and Opportunities: A Companion Guide to PPG17 (2002) Planning for Biodiversity and Geological Conservation: A Guide to Good Practice (2006) Annex E: Permitted Development Rights For Agriculture And Forestry of Planning Policy Guidance 7: The Countryside - Environmental Quality and Economic and Social Development (1997) Planning Policy Statement 10: Planning for Sustainable Waste Management (2005) Planning for Town Centres: Practice guidance on need, impact and the sequential approach (2009) Employment Land Reviews: Guidance Note (2004) Planning for Town Centres: Guidance on Design and Implementation tools (2005) Good Practice Guide on Planning for Tourism (2006) PPS5 Planning for the Historic Environment: Historic Environment Planning Practice Guide (2010) A Householder's Planning Guide for the Installation of Antennas, including Satellite Dishes (2008) Code of Best Practice on Mobile Phone Network Development (2002) A challenge for all hawk-eyed planners!

If windfalls can be PDL or GF (definition) , but windfalls in the first 5 yrs can't be gardens (para 48). Can we assume that windfalls after 5yrs can include garden land? Also, previous advice stated that the 5yr land supply should be projected forward i.e. the 5 YLS in the Dec 09 AMR for 08/09 started with 10/11 rather than 09/10. This advice has now gone so I assume we can start the 5YLS from the first year, 09/10 in this example? Just wondered what people were doing regarding housing trajectory monitoring in light of the NPPF. Seems like we have more freedom.

Helen, I would be interested in reading Adam's take on this and those of others trying to interpret the advice on windfalls and garden land and para 48 in particular. Taken literally para 48 implies that only in the first 5 years can an allowance for windfalls not include garden land. However para 53 reflects the Government's desire to protect garden land from development and invites LPAs to consider policies to protect the inappropriate development of residential gardens. It will be up to each LPA to decide whether it is going to introduce such a policy but for those that don't and who may want to rely upon the redevelopment of garden land as a future source of housing land supply, they might be exposed to challenge at Examinations. As such I think the only logical interpretation of the NPPF advice on garden land is that windfalls should not include residential gardens whether it be in the first 5 years or in later years, unless the LPA can substantiate why it is not minded to adopt policies protecting inapropriate development of garden land in accordance with para 53. This does not necessarily mean that garden land cannot be developed at all but I think that LPAs will need to allocate specific sites to be identified in SHLAAs rather than rely upon this source as part of a windfall allowance. In a nutshell what is the logic of excluding garden land only from the first 5 years of your housing land supply as the concern regarding the development of garden land is not just a question whether such land is either deliverable or developable but wrapped up in its suitability.

Michael, I can't comment on advice given by others to others, I can only state my understanding of 48 is in line with yours. Why would garden land suddenly be back 'in the mix' as a windfall site outside years 1-5? What do we all think is meant by 'in the five-year supply'? It sounds very much to me like years 1-5 (albeit on a rolling basis, so this year's 'year 2' is next year's 'year 1'). So although you may expect windfalls to deliver in perpetuity, it seems to me that you can only include them in the five-year supply. At no time within this five-year supply can you include residential gardens as windfall, as 48 states. Your annual monitoring will show you whether your assumptions/forecasts about windfall contributions are right. If they are, then you may have 'compelling evidence' to keep including an allowance for them in the (rolling) five-year supply. I do not see this as the same thing as including them in years 6-15 NOW. You have to wait until the monitoring comes in to show you whether the compelling evidence is still there and you can continue to make an allowance for them. So, to summarise, I believe 48 tells you that an allowance for windfalls can only be made in the five-year supply, and that allowance should not include residential gardens. As always, that is only my understanding not a 'legal' response.

Hi all, Please be gentle with me as it's my first post! I'm a bit confused on the windfall issue still. The definition of deliverable sites differs in the SHLAA Guidance and the NPPF. Footnote 11 in the NPPF seems to suggest that in order for sites to be found deliverable they need to benefit from a current planning permission. There may be sites identified in the SHLAA as being deliverable under the guidance definition but which don't have planning permission at present. Can they be counted in the 5 year supply or was the intention of adding the extra wording to the definition to prevent authorities adding them, and thus giving weight to sites which haven't gone through the proper consultation process? Thanks, Leanne

Hi Leanne, and welcome to the wonderful world of the PAS discussion forums. Fora? Fauna? Flora? Anyway, my understanding of footnote 11 is that the sentence on considering sites with permission as deliverable is in addition to the first sentence, and not a qualification of it. I think it is there to assist local authorities in making sure they do consider sites with permission in the five-year supply, unless the evidence suggests that all or part of it won't be delivered in the five-year supply. Other sites as defined in the first sentence can also be considered provided they meet the 'criteria' of that sentence. Finally, if there is any conflict between the SHLAA guidance and the NPPF, then the NPPF will 'win'. I hope that's a gentle enough response, and you'll be back again if need be :-)

Thanks Adam

Leanne/Adam, Ive posted on this before and my interpretation of footnote 11 differs from yours Adam. In my opinion intention of the footnote is clear. It is saying that sites with planning should be considered deliverable unless clear evidence shows that the development will not be implemented within the 5 year period. Whilst it doesn't refer to sites without permission, it does quite cleary infer that once permission expires sites should not be considered deliverable. There is no logical explanation to exclude sites where permissions have lapsed from the 5 year supply but include sites with no planning status. In a separate post on SHLAAs and viability the question is asked how LPAs can adequately assess viability of permitted sites. That is a separate topic but the point is important here because for any site to be considered deliverable LPAs must have evidence that sites are viable. Until permission is granted it is pretty impossible to determine whether firstly planning permission will even be granted (as the SHLAA process does not infer that permission will be forthcoming, secondly that the landowner or developer is interested in securing planning permission and thirdly that if permission is granted that the development will be viable because that in part depends upon what is granted, the conditions that are to be attached and the level of section 106 contributions. As a developer I can say that almost every SHLAA we review includes sites within the 5 year supply that are not viable. This can be for a variety of reasons such as previously approved high density apartment schemes are no longer fundable or attractive to the market etc. Sites without planning permission cannot be deemed to be deliverable because it is not possible to have any certainty that they will be available, suitable or achievable. Yes evidence can be obtained site by site to try to satisfy the LPA on these points but realistically until a permission is granted there can be no certainty that these sites will come forward in the 5 year period. This is my view and I appreciate that others may not share it but I believe that footnote 11 is pretty clear. I do not believe that the footnote is simply there to remind LPAs that they should include sites with planning in the 5 year supply because I've not come across any SHLAAs where LPAs do not already do so. The important thing here is what makes a site deliverable and in my view to satisfy the criteria permission must have been granted and that the development remains viable.

Michael, I agree that the issue of viability in SHLAA sites is something that will be a challenge to local authorities. However, I disagree about the interpretation of Footnote 11. The first sentence does not narrow things down to sites with permission only. The second sentence tells local authorities how to deal with sites with permission. The second sentence does not cancel out the first. If the intention was to state that only sites with permission can be included in years 1-5, then that would have been very easy to state. The plan-led system would also point to a number of allocations expected to come forward within years 1-5. It is possible to meet the 'criteria' in the first sentence without having permission. There will be a number of sites that are in pre-application discussions too. The details of which would indicate a build out in years 1-5. The same would be said for sites where there are undecided applications. It would be a little strange to have to discount these from years 1-5 simply because they did not yet have the benefit of permission, wouldn't it? I also think it is reasonable to distinguish between sites with expired permissions and those yet to have permission. What do others think? I am sure authority experience differs, but the ones I worked for made informed decisions on when a site was likely to come forward and would not include sites in years 1-5 where they had not spoken to owner and/or developer. They would also have a good understanding of any site remediation or other issues which may affect delivery coming through quickly. I'd like to open this out for discussion if I may. How many of you local authority planners out there include sites without permission in years 1-5? And why/not?

Cheshire East include sites without permission within their SHLAA and are likely to continue to do so. Although we are fully aware of Mike's concerns.

Adam, I'm more than happy to read the views of others and particularly local authorirty planners. We differ in the interpretation of footnote 11 and in the appeal at Sandbach in which we are involved and which Joanne is fully aware, I've made reference to the footnote in my further submissions to the Secretary of State. I doubt that this will be picked up on in any detail as and when he makes his redetermination of our appeal, but it is an important issue in Cheshire East as nearly 40% of the 5 year supply consists of sites with no planning status. On allocations, these are different because allocated sites will have been examined and found to be acceptable and no doubt evidence of when they will be coming forward will have been scrutinized. I think this is materially different to sites that do not have any planning status simply because that evidence will not have been tested to demonstrate deliverability. I am perfectly aware that many Councils do rely to varying degrees on SHLAA sites that have no planning status as forming part of the 5 year supply and whilst I'm not suggesting that these absolutely have to be excluded, I am saying that to accord to the definition of deliverability in the NPPF any such sites will have to be properly evidenced and that evidence has to stand up to scrutiny to prove deliverability.

Michael, I understand where you are coming from and think it would be remiss of me to be seen to be suggesting that sites can be considered deliverable without some evidence that the site is viable. My original understanding of your interpretation of Footnote 11 was that it meant ONLY sites with permission can be considered deliverable. I note that this is not the case, and you're making the important point that there needs to be some robust evidence of viability as part of the definition of what constitutes a 'deliverable' site. However, I am still fairly confident that at least some sites identified in the SHLAA - which, (unless I'm missing a legal definition of planning status, and apologies if I am) I think does give them some planning status, as they are 'identified' and therefore no longer windfall - will have been so identified as there will have been a degree of evidence produced on them which may include viability assessments. Finally, as I said before, any site either with advanced pre-application discussions, or in the process of being dealt with as a live application ought to be considered as part of the five-year supply especially where there are no unresolved issues to determine or other extenuating factors (such as known mitigation measures like contaminated land which may delay the build-out on the site). It is highly unlikely that any applicant will enter into discussions on a future application for something they don't consider to be viable. There still needs to be some evidence of this, of course, but it is a further indication in my mind that Footnote 11 is not referring to sites with permission as the only sites to be considered deliverable. As always, this is no more than my opinion.

Hi Adam, Just a couple of quick thoughts back on your reply and then I will say no more! Not being a lawyer my interpretation of Footnote 11 was simplying applying logic to what it says and infers. I do believe that if and when it is scrutinized by legal minds then it will be interesting to see what is decided. All of this could be resolved by the DCLG updating the practice guidance for SHLAAS and hopefully this will be done as soon as possible. As a mere planner I have sympathy for your views and with the task facing local authority planners in evidencing sites that don't have any planning status sufficient to pass the tests to demonstrate deliverability. On your point that pre-application discussions should imply that an intended future proposal is viable, I would agree to a point and this level of discussion should be part of the evidence base. However it is not until planning permission has been determined that viability can properly be assessed, as Section 106 requirements or changes post submission can and often do impact upon deliverability. One final point, whether or not my interpretation of footnote 11 is correct or not is largely academic. The main point I'm trying to make is that the NPPF paragraphs 47 and 49 mean that unless Councils can deliver on their 5 year supply which in turn means that their assessment of supply really is deliverable, then the ramifications of not getting the assessment right are very clearly set out in the NPPF.

Sorry to prolong the discussion, but! To date we have only included sites with planning permission in the 5yr supply, where we have evidence agreed with the industry that they will come forward at least in part within 5 years. On the basis of NPPF policies we are contemplating: a)including all sites with planning permission unless we have evidence that they will NOT come forward within 5 years b) including some sort of allowance based on those sites without planning permission but assessed in the SHLAA after consultation with "the industry" as deliverable within 5 years. We are not sure we can include all these individual sites as this is almost saying inclusion in the SHLAA has the same status as an outline planning permission, and can be "granted" without consultation with the public or the involvement of Planning Committee. ( In the real world even applications on allocated site can be refused permission which will delay delivery even if granted on appeal.) But we will probably be able to produce evidence that at least some of them are bound to be built within the five year period - the proportion might vary between different categories of site. All to be discussed between us, and then if we proceed with the development industry!

Geoff, for what it's worth your approach seems like a good and sensible one to me. Any other thoughts from anyone? Even things that get started sometimes stall, so is anything ever 'certain' to be completed until it actually is? If we don't take some kind of approach to this, we won't ever be able to do any trajectories or forecasting, we'd just churn out completion stats wouldn't we? But you have to do your five year supply, so if you only rely on projecting past completion rates forward, I doubt that will get you very far. Of course every identified site in the SHLAA will still have to go through consultation and an application, and there may well be details that don't lead to an immediate approval. If you have spoken to the right people, at least you can say that any particular site is likely to be a viable proposition and to have some development coming forward on it. Maybe we should chat to our DM colleagues and treat the SHLAA as one big pre-application discussion. Or do we do that anyway? What 'filters' do people apply to their SHLAA sites before feeling comfortable including them?

Geoff, I think your approach is spot on and is exactly what I believe the approach should be for calculating the 5 year supply. The inclusion of sites with planning UNLESS evidence demonstrates they should be excluded, is precisely in line with the NPPF. Sites without any planning status should only be included if robust evidence exists that these will come forward within the 5 year period and even then you have to be careful about lead in times. As Adam has said, it isn't an exact science and there can never be certainty that sites will definately come forward and that build rates will deliver the anticipated number of completions. But all you can do is use the best available evidence to calculate the supply so you can defend any questions about the soundness of the calculation and then monitor annually to ensure that the supply is delivering the required amount of completions.

In earlier posts I gave my own interpretation of footnote 11 and said that it has implications for any sites without planning permission that are included in the 5 year land supply. I don't wish to resurrect the debate or say anything further on the matter but I thought it would be useful to highlight the first Inspector's deecision that I have come across since the NPPF was published, that considers the meaning of footnote 11. The appeal concerns a residential proposal in High Peak and the reference is APP/H1033/A/11/2159038. At paragraph 10 of the decision the Inspector concludes that sites which no langer have planning permission or significantly which have not yet received planning permission cannot be considered deliverable in the terms of the NPPF. Granted this is this Inspector's interpretation of Footnote 11, but it supports the point I was making. There may of course be other decisions where a different view has been taken, but this is the first I've seen where an Inspector has directly concluded on the point.

Thanks Michael. That is interesting and certainly does support your interpretation in previous posts. It will be interesting to see how this plays out in other appeals. If there is a clear line of decision which states 'deliverable equals sites with permission only' then I think there will be a lot of recalculating going on! What is also clear to me from the decision is the need for some pretty good evidence if there are sites that are to be relied upon as deliverable. The Inspector points to a few of the (apparently) larger sites and lists reasons why deliverability within 5 years is questionable. It is difficult to argue with any of these reasons, and so it suggests that some pretty robust evidence will be needed to push for sites without permission being included. Does anyone do any monitoring on completions to see how many sites are built in any 5-year period that did not have the benefit of permission at the outset of that 5-year period? I'm sure it's easy enough to work out. How regularly are you in touch with developers/land owners to discuss likely delivery timescales, and issues preventing them building particular sites? When yuo do a call for sites for the SHLAA, do you gather any data on when those are likely to come forward? I am guessing you may have to if you want to suggest that a 5-year supply can include sites without permission, following this decision, and also that you may have to back it up with site-specific evidence to suggest any apparent issues should be expected to be overcome to allow deliverability within 5 years. Any other thoughts?

Just a quick thought but . . . If A N Other Developer owns two sites 1. Brownfield site in need of remediation but a key site that the local people and Council would like to see regenerated and 2. a nice greenfield site on the edge of the settlement, no issues with the site Why would A N Other developer tell you anything other than the fact that site 1 is not currently developable and that site 2 is deliverable? How will local authorities and local communities ever get their brownfield, contaminated sites or sites within regeneration areas developed?

Joanne, I don't doubt it. How are others achieving development on brownfield sites before releasing greenfield sites? What policies/arguments/evidence are proving effective?

Just a quick reply back on Joanne's thought, I admit that it isn't straight forward to assemble evidence to demonstrate deliverability in accordance with the advice in the NPPF. That is surely why footnote 11 was added to set out some logical thinking. To satisfy the definition of deliverable sites, it is pretty clear that either a site must have the benefit of an extant planning permission (unless there is clear evidence that development for whatever reason will not come forward in 5 years) or if there is no extant permission then the contrary position applies that Councils can only include these sites as being deliverable if there is clear evidence to demonstrate that they will come forward. The appeal decision in High Peak really just follows this thinking. If you apply this thinking then the answer to Joanne's question is very easy - if the developer has an extant permission for the brownfield site for housing, then unless he can convince Joanne's Council that there is no realistic prospect that housing will come forward the site should be included and the onus is on the developer or any other party to prove otherwise. If the same developer has no extant consent on the greenfield site then it shouldn't be included unless the Council has evidence that it is deliverable. If it has an extant consent then the same thinking applies as above. The key point here is testing the evidence and if you do this properly then I don't see what the issue is.