Developers win appeal after inspector rules East Herts Council does not have five-year housing land supply

Slow delivery of new homes in Bishop’s Stortford contributed to East Herts Council losing its battle against a new estate in Buntingford.

Countryside Partnerships Ltd and Wattsdown Developments Ltd appealed and won after an inspector ruled the council could not demonstrate the five-year deliverable housing land supply required by the National Planning Policy Framework (NPPF).

The verdict raises the spectre of further speculative development across the district. The authority had refused the application for 350 homes, up to 4,400 sq m of commercial floorspace and up to 500 sq m of retail floorspace, east of the A10.

The inquiry also considered the suitability of the location, access to services and facilities, and the effect on the character and appearance of the area.

The existing East Herts District Plan, approved in 2018, ruled out an urban extension for Buntingford.

Instead, proposals for major construction focused on Bishop’s Stortford, Hertford and Ware, with a share of development at Harlow and Gilston Garden Town and east of Welwyn Garden City.

At the appeal, the council’s evidence included a Local Housing Need (LHN) of 1,041 properties per annum as of April 1, 2023. Revised affordability ratios published in March 2024 generated a requirement of 5,205 dwellings over five years.

The developers argued that the correct figures were 1,112 dwellings a year and 5,560 in all – a shortfall of 355.

The council told the inspector it could demonstrate a deliverable, five-year housing land supply of 6,307 dwellings from April 1, 2023 to March 31, 2028. That equates to 5.67 or 6.06 years, depending on the approach used.

The appellants argued it was closer to 3.86 to 3.93 years with a supply of 4,088 dwellings. After considering their arguments, the inspector ruled that 4,671 – or up to 4.49 years – was the accurate figure.

The NPPF says that to be “deliverable”, a site must be available now, offer a suitable location for development now and be achievable with a reasonable prospect of delivery over five years.

Sites with detailed planning permission are assumed to be deliverable unless there is evidence to indicate otherwise. Sites with outline planning permission or allocated sites are only considered deliverable where there is clear evidence that delivery will take place within five years.

The inspector looked at developments across the district that were either under construction or had planning permission to determine who was correct.

Land at Bishop’s Stortford North – the Stortford Fields estate – is part of the District Plan and was granted planning permission in 2015 for 2,200 dwellings, with 890 completed up to 2022-23.

The inspector’s report says: “Build-out rates have varied [from] 105 to 286 per year with an average of 202. Progress on site has slowed due to Covid-19 and because construction is coming to an end on recent phases.

“All remaining parcels are expected to commence by 2025 at a rate of at least 260 per year with five developers on site.

“However, there is a lack of evidence to substantiate the higher predicted delivery rate identified by the council and so I have reduced the anticipated completions to align with the average delivery rate that has occurred on the site to date. This generates a figure of 1,010 dwellings.”

St Michael’s Hurst, the fifth Stortford North site, was less contentious, with the inspector agreeing that as 272 homes were completed by 2022-23 with an average delivery rate of 54 per year, the council’s prediction that a further 257 would be delivered was correct.

However, the inspector said there was “little to demonstrate” that 223 new homes would be delivered at the former Bishop’s Stortford High School site in London Road in time. Last month, housebuilder Bellway launched a public consultation on its plans.

At the Goodsyard, next to Bishop’s Stortford railway station, the inspector noted that 174 homes have been built and a hybrid planning application for 423 dwellings – 245 in detail and 178 in outline – has been submitted, with a decision expected by the end of 2024.

The inspector said: “In the absence of clear evidence to show delivery of the 423 dwellings in the hybrid application, I have only included the 174 already contributing to the five-year supply.”

At the Causeway, where Cityheart is yet to submit a revised planning application for homes, offices and retail units as part of the Old River Lane scheme, the inspector said there was a “lack of clear evidence” that the council’s claim 150 homes would be delivered in 2027-28 was credible.

The final report did not include St James’ Park, off Whittington Way, where Countryside has permission to build 750 properties.

After examining the deliverability of a range of sites across the district, the inspector concluded: “I am of the view that the council can demonstrate through clear evidence that it has sufficient housing land for the delivery of 4,671 dwellings within the five-year period 2023-28.

“The council has a 4.2- to 4.49-year housing land supply. Whether using the approach favoured by the council or that favoured by the appellant, the council cannot demonstrate a five-year housing land supply and so the NPPF deems the policies which are most important for determining the planning application to be out of date.

“Where policies are out of date… the NPPF says that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits.”

The fear now is that other developers will use the verdict to win planning permission before the council completes its review of the District Plan.

East Herts began a ‘call for sites’ in July. Landowners, developers, agents and site promoters have until the end of September to submit land to be considered for building as the district renews its housing and jobs strategy.