'Housing supply policies' clarified - but it's not open season for housebuilders

John Pugh-Smith of 39 Essex Chambers considers the judgment of the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd; Richborough Estates Partnership LLP v Cheshire East Borough Council and another, a decision which puts to rest years of controversy.

Background

Suffolk Coastal District Council v Hopkins Homes Ltd; Richborough Estates Partnership LLP v Cheshire East Borough Council and another [2016] EWCA Civ 168, [2016] All ER (D) 172 (Mar).

The Court of Appeal, Civil Division, ruled on two conjoined appeals concerning the meaning and effect of paragraph 49 of the National Planning Policy Framework (NPPF). Among other things, it held that, ‘[relevant] policies for the supply of housing’, meant ‘relevant policies affecting the supply of housing’. A ‘relevant’ policy was simply a policy relevant to the application for planning permission before the decision-maker, relevant either because it was a policy relating specifically to the provision of new housing in the local planning authority's area or because it bore upon the principle of the site in question being developed for housing.

What is the background to this case?

NPPF14 contains a presumption in favour of granting planning permission for sustainable development which either accords with the statutory development plan or where the development plan is absent, silent or relevant policies are out-of-date. NPPF49 advises that:

‘“[…]relevant policies for the supply of housing” should not be considered up-to-date if a local planning authority (“LPA”) cannot demonstrate a five-year supply of deliverable housing sites’.

The decision puts to rest years of controversy, played out in numerous planning appeals and a confusing series of High Court judgments, as to whether a ‘narrow’ interpretation should be taken of this phrase in which the words are construed as meaning ‘relevant policies providing for the amount and distribution of new housing development and the allocation of sites for such development’ or the so-called ‘intermediate’ or ‘compromise’ construction of the wording, in which the ‘narrow’ construction has been widened to capture restrictive policies of a general nature but not restrictive policies whose purpose is more specific (eg ‘green gaps’).

What was the key issue before the court?

It has approved an even ‘wider’ approach to ‘relevant policies’ construing the words to mean ‘relevant policies that affect the supply of housing’ and so including:

‘[…]policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed—including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development’ (Lindblom LJ, para [33]).

Such restrictive policies may (the court emphasised ‘may’) have the effect of constraining the supply of housing land, in which event if an LPA is unable to demonstrate the requisite five-year-supply then relevant policies are liable to be regarded as not up to date for the purposes of NPPF49 and so out of date for the purposes of NPPF14.

What are the practical implications of this decision?

The court has injected shades of grey into a debate that has often been treated as black and white. The weight to be given to ‘out of date’ development plan policy will vary according to the circumstances, such as the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the LPA to address it, and the particular purposes of a restrictive policy. The court envisaged ‘many cases’ in which restrictive policies are given sufficient weight to justify the refusal of planning permission despite being ‘out of date’ under NPPF49. It emphasised that ‘weight’ is always a matter of planning judgment for the decision-maker.

The court further emphasised that the NPPF is a policy document which does not displace the statutory presumption in favour of the development plan and operates within the statutory framework; albeit as government policy it is ‘likely always to merit significant weight’. Accordingly, provided the decision-maker correctly construes NPPF49 in line with the court’s interpretation, it is then a matter for his/its planning judgment reviewable only on Wednesbury reasonable grounds.

While this decision is most welcome to the residential development industry there is still plenty in the court’s judgment to counteract the significance of that finding. If, for example, a decision-maker concludes that a development plan green belt policy is a ‘relevant policy’ and ‘out-of-date’ for the purposes of NPP49, not only does NPPF14 footnote 9 contain an important ‘unless’, that such restrictive policies still apply with full force, but, that particular ‘out-of-date’ development plan policy may still lawfully carry greater weight than the NPPF’s housing supply policies, dependent on the circumstances.

How does this fit in with other developments in this area?

The court’s approach follows its trend towards trying not to allow planning decisions to become over-legalistic. For example, in Jones v Mordue [2015] EWCA Civ 1243, [2015] All ER (D) 36 (Dec) a differently constituted Court of Appeal held that, in relation to the impact of new development on the setting of a listed building, the reasons to be given by the decision-maker did not have to separately address the specific statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Rather, they could be briefly stated, provided they were intelligible and adequate so as to enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues including how this issue of law was resolved. Again, the degree of particularity required depended entirely on the nature of the issues falling for decision.

What action should lawyers be taking in light of this decision?

Discuss with their clients whether a current stance being taken by an LPA, or, an applicant/appellant should be challenged or maintained. The consequent correspondence trail may also have implications on whether an appeal should be pursued or, in the case of an LPA, an application taken back to members as to whether it should still be resisted on sound planning grounds. It is also relevant to whether a costs award should be threatened.

John Pugh-Smith’s principal practice areas are town & country planning and environmental law. He deals with related local government, parliamentary and property work. He is also an experienced. In growing recognition of John’s wide-ranging planning and mediation experience, he has also been appointed both as a Design Council Cabe Built Environment Expert and as one of the DCLG’s ‘Section 106 brokers’.

Interviewed by Barbara Bergin.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

 

 

 

Filed Under: Planning

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