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Judgement Summary

An independent Planner suggested that the following is perhaps 'the best summary to date' and it is by a legal firm; he 'stripped away' surplus material' for the layperson. Please be aware that 'interpretation' of terms is usually the legal brief and I think we will have to wait to read Havant Borough Council's interpretation and its effect on Hayling.

Narrow win at the Supreme Court by Hogan Lovells

So here it is, the highly anticipated Supreme Court judgment on the interpretation and legal status of the National Planning Policy Framework (NPPF). Yes, the planning permissions were upheld, but the court took a narrow interpretation of the NPPF policy and made it clear that the development plan reigns supreme when it comes to decision making. This case will have significant implications, for not only housing applications, but for all other planning applications that do not accord with the development plan. We set out the key points, factual background and our commentary on the judgment below. Key points:

  • Two housing cases concerned with the interpretation of paragraph 49 NPPF were combined and heard by the Supreme Court in February.

  • Paragraph 49 NPPF (P49) says that "housing applications should be considered in the context of the presumption in favour of sustainable development" contained in Paragraph 14 NPPF (P14).

  • P49 also states that if a local planning authority (LPA) does not have a five year housing supply (5YHS), "relevant policies for the supply of housing should not be considered up-to-date".

  • The question for the court was which policies are "relevant" and should be considered out of date if there is no 5YHS.

  • Unlike the Court of Appeal, the Supreme Court took a narrow approach to P49. It held that "policies for the supply of housing" means simply "housing supply policies". They are not policies which "affect" the supply of housing (which would be a wider approach).

  • This means that local plan policies that generally restrict development (in the countryside or otherwise) are not "relevant policies for the supply of housing". Such policies should not be considered out of date, even if the LPA cannot demonstrate a 5YHS.

  • The key issue is whether a 5YHS exists. If it does not, the P14 balance is triggered because the housing supply policies are out of date. In Lord Cornwarth's words, "The shortfall is enough to trigger the operation of the second part of paragraph 14".

  • The NPPF is nothing more than "guidance" to be used to determine planning applications. It is one of many material considerations which must be weighed in the balance. It does not have supremacy over the statutory development plan.

The Facts: Suffolk Coastal District Council (SCDC) refused Hopkins Homes' application for 26 houses in Yoxford. The inspector dismissed Hopkins Homes' appeal, but his decision was overturned by the High Court and the Court of Appeal, which found that he was wrong to apply P49 to the pro-housing policies only, as P49 should apply to all relevant policies for the supply of housing (which he interpreted widely). This became known as the "wide approach". SCDC appealed to the Supreme Court. Richborough Estates appealed against Cheshire East Borough Council's (CEBC) non-determination of its application for up to 170 houses. The inspector allowed the appeal and granted permission for up to 146 dwellings. The High Court quashed the permission on the basis that the inspector had been wrong to treat the "green gap" policy as a relevant policy for the supply of housing and in dividing the policy "so as to apply it in part only". The Court of Appeal disagreed and restored the planning permission. CEBC then appealed to the Supreme Court. Commentary: The Supreme Court interpreted P49 narrowly, but in doing so stressed that the most important question is whether there is a 5YHS. If the LPA fails to demonstrate a 5YHS, the second limb of P14 is triggered. This advises that permission be granted unless the adverse impacts outweigh the benefits, or specific policies in the NPPF or development plan indicate that permission be refused. In terms of the weight to be attributed to the polices, the court was clear that this is "a matter of planning judgement for the decision-maker" and must be judged against the need for development. This is no doubt good news for LPAs. The court said that in the Richborough case (where there was not a 5YHS) the inspector should not have allowed a policy's "up-to-date" status to mean that it was afforded more weight. In fact, the court said that "its weight might need to be reduced if housing objectives were to be fulfilled". This means that the existence of a 5YHS is a crucial factor for housing applications that do not accord with the development plan and where there is a greater shortfall, it may be more difficult for the decision-maker to justify apportioning greater weight to restrictive policies whether they are out of date or not. The court also commented on its role when it comes to planning policy. It said that the courts should take a relatively 'hands off' approach when it comes to the interpretation of planning policy and would only intervene where its meaning is contested. It also stressed that it is the LPA's role (and not the court's) to apply the policy to the particular facts of the application in question. The judgment has brought some much needed clarity to the NPPF, but has also stressed the wide discretion of the decision-maker in deciding the weight to be apportioned when undertaking the balancing exercise in P14. It could therefore lead to more appeals if a developer feels that the Secretary of State would be more pro-development than the relevant LPA.

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