Supreme Court confirms 'narrow' meaning of NPPF paragraph 49

The Supreme Court has confirmed a ‘narrow’ meaning of NPPF paragraph 49 in respect of relevant policies for the supply of housing but at the same time has discouraged the sometimes overly legalistic interpretation placed on the NPPF.

Supreme Court

Judgment was handed down this morning from the Supreme Court in conjoined appeals concerning the effect of Government policy in paragraph 49 of the NPPF. The appeals concerned the meaning of the wording “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”, and how this is to be applied in planning decisions.

Richborough Estates had been seeking planning permission for 146 homes on a 16 acre site near Nantwich in Cheshire East located in a controversial Green Gap, around Crewe, which the Council is seeking to upgrade to Green Belt. Their appeal was allowed but challenged in the High Court by the Council.

Separately, Hopkins Homes were seeking planning permission for 26 houses on land in Yoxford, Suffolk, which lies within historic parkland outside the settlement boundary. Their appeal against Suffolk Coastal District Council was upheld but this was challenged in the High Court.

Both decisions then went to the Court of Appeal and ultimately reached the Supreme Court in February.

As a result of today’s judgment, the planning permission won on appeal for Richborough has been reinstated, whilst the appeal decision to allow development in Yoxford will be returned to the Inspectorate.

The Supreme Court examined the interaction between NPPF paragraphs 14 and 49.

Paragraph 14 deals with the “presumption in favour of sustainable development”, and includes the “tilted balance” provision: that where the development plan is silent or policies out of date, permission should be granted unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”. Paragraph 49 adds that: “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”.

The judgment states that the primary purpose of paragraph 49 of the NPPF is simply to act as a trigger to the operation of the “tilted balance” under paragraph 14 and that:

“In that context the words “policies for the supply of housing” indicate the category of policies with which we are concerned: the word “for” simply indicates the purpose of the policies in question. There is no justification for substituting the word “affecting” which has a different emphasis.”

This is confirmation of a ‘narrow’ meaning of the paragraph, as described by Ouseley J in the Barwood Land case as “limited to policies dealing only with the numbers and distribution of new housing, and excluding any other policies of the development plan dealing generally with the disposition or restriction of new development in the authority’s area.”

Central to the Supreme Court judgment is this explanation at paragraphs 57 and 59:

57. ………. the words “policies for the supply of housing” appear to do no more than indicate the category of policies with which we are concerned, in other words “housing supply policies”. The word “for” simply indicates the purpose of the policies in question, so distinguishing them from other familiar categories, such as policies for the supply of employment land, or for the protection of the countryside. I do not see any justification for substituting the word “affecting”, which has a different emphasis. It is true that other groups of policies, positive or restrictive, may interact with the housing policies, and so affect their operation. But that does not make them policies for the supply of housing in the ordinary sense of that expression. (57)

……….The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14…... (59)

The second part of paragraph 14 removes the presumption in favour of sustainable development where there is harm, as assessed against the policies in the Framework taken as a whole, or where ‘specific’ polices apply. Today’s judgment makes it clear that this includes development plan policies and thus includes Green Belt policies. In the absence of a five year housing land supply, Green Belt policy cannot be judged to be acting against the Government’s policy to boost significantly the supply of housing land and cannot simply be given less weight by the decision maker.

As always, weight is a matter for the decision taker based on all the circumstances of the case.

Whereas in the Richborough appeal the inspector had been entitled, as a matter of planning judgement, to reduce the weight given to the development plan ‘Green Gap’ policy in those particular circumstances, we can expect that will be the exception rather than the rule.

The weight to be given to Green Belt policy remains subject to the applicant/appellant being able to demonstrate very special circumstances (VSC).

The then Coalition Government made it clear that housing need on its own was unlikely to amount to very special circumstances to permit otherwise inappropriate development in the Green Belt, and that position has been consistently maintained since 2013.

Whilst the Supreme Court has clarified the legal status and meaning of this part of the NPPF, Lord Gill in his judgment expressed the view: “If a planning authority that was in default of the requirement of a five-year supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (paragraph 83). It is therefore in the weighing up of the consequences of applying development plan policies that decision-takers can and should apply the judgment as to how policies should be interpreted.

The full judgment plus a summary can be found on the Supreme Court website.

10 May 2017