St Modwen Development Limited v Secretary of State for Communities and Local Government and Others  EWCA Civ 1643
Paul Tucker QC and Freddie Humphreys
- the courts should not be used to elevate planning merits challenges to challenges of law; and
- policy (in this case the infamous footnote) should be give its plain and ordinary meaning.
The case doesn’t lower the bar on site yield nor does it establish any wider principle other than that the footnote means what it says.
 Prior to the introduction of the PPG in March 2014 which advised that “the development potential of all sites can be collected to produce an indicative trajectory”, previous guidance published in 2009 (replacing a 2007 version) advised that when assessing the supply of sites:
"Once the initial survey of sites and the assessment of their deliverability/developability has been made, the housing potential of all sites can be collected to produce an indicative housing trajectory that sets out how much housing can be provided, and at what point in the future."
(Strategic Housing Land Availability Assessments, Practice Guidance, CLG, 2009)
In respect of delivery and plan making, the NPPF repeated the earlier guidance and requires LPAs to: "illustrate the expected rate of housing delivery through a trajectory for the plan period" (bullet 4 of para 47, NPPF) which is similar to the requirement in PPS3 (2006) bullet 4 of para 55.
Thus, a trajectory can relate to the indicative delivery of sites identified in a SHLAA or to the plan making role of assessing the “expected rate” of delivery “for the plan period”. The former relates to identified supply, the latter to plan making and plainly has a much wider compass. The reference in the Appellant’s closing related to attempted to the latter (ie that set out in our HIS and related to delivery and plan making), rather than the former trajectory (which was set out in the SHLAA and related to supply), in support of their argument. The Court of Appeal addressed this distinction at para.39 of the judgement.
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