Council seeks Supreme Court consideration of what constitutes a ‘relevant policy for the supply of housing’

Suburban Housing

15 April 2016

Last month, Turley commented on the Court of Appeal ruling in the Richborough Estates case in Willaston. This found Green Gap (and similar) policies to be ‘relevant policies for the supply of housing’ and, therefore, out-of-date where a local authority is unable to demonstrate a five year supply of housing land [In accordance with paragraph 49 of the National Planning Policy Framework (NPPF).] It has now been revealed that Cheshire East Council (CEC), together with Suffolk Coastal District Council, are seeking ‘leave to appeal’ in order to attempt to overturn the Court of Appeal ruling in the Supreme Court.

CEC’s Grounds of Appeal states that: “The Supreme Court has not yet had the opportunity of considering the nationally important issues raised in this appeal… The correct meaning and application of paragraph 49 in the NPPF also raises the nationally important issue of the relationship between government policy set out in the NPPF and policy in the locally produced statutory development plan”.

CEC contends that the Court of Appeal erred in its conclusions that the phrase ‘policies for the supply of housing’ in paragraph 49 of the NPPF should be interpreted as ‘policies affecting the supply of housing’. The effect is that “the subject matter of the policies deemed to be out-of-date will be very broad indeed”, including those that have a bearing on the environmental role of sustainable development, which will “disturb the mutual dependence of the three dimensions of sustainable development identified in paragraph 8 of the NPPF”.

If granted leave to appeal, it is anticipated that the case will likely be heard by the Supreme Court in London later this summer.

In the meantime, an appeal decision has been issued by the Planning Inspectorate (PINs) this week which acknowledges the Court of Appeal judgment but dismisses proposals for development within a Green Wedge, despite an accepted shortfall in housing land supply.

The appeal decision relates to an outline planning application for up to 125 houses on open land between two suburbs of Derby. It was agreed between the parties that the Council cannot demonstrate a five year supply of deliverable housing sites and as a result, relevant policies for the supply of housing cannot be considered to be up-to-date.

Applying the logic of the Court of Appeal judgment, the Inspector found the adopted Green Wedge policy (E2) to be out-of-date for the purposes of applying the presumption in favour of sustainable development set out at paragraph 14 of the NPPF. However, the Inspector highlighted that this:

“…does not provide carte blanche to necessarily disregard a policy in a time-expired plan or even to discard a policy which is deemed to be ‘out-of-date’… The task is to set the statutory requirements against the other material considerations that apply in order to arrive at an appropriate balance in favour or against the scheme”.

In dismissing the appeal, the Inspector concluded that Derby’s Green Wedge policy is not inconsistent with the Framework as a whole, or its imperative to ‘boost significantly the supply of housing’ as it does not have the permanence of Green Belt and its boundaries have been subject to review. In this way, he concluded that the Green Wedges “are not necessarily incompatible with the pro-growth stance of the Framework, nor, in themselves inconsistent with the exhortation to ‘boost significantly the supply of housing’”. The Inspector also gave weight to the Council’s assertion that they would be able to demonstrate more than a five year supply once the Core Strategy is adopted and the draft allocations confirmed; currently timetabled for July 2016.

In undertaking the planning balance, the Inspector accepted that the proposals would achieve economic, social and environmental aims and result in new development in a sustainable location. However, the proposal would “substantially diminish” the sense of separation between the two distinct neighbourhoods; the environmental and social impacts of which “would be very damaging” to an extent that would significantly and demonstrably outweigh the accepted benefits of the scheme.

Cheshire East’s desire to challenge the recent Court of Appeal judgment is not wholly unexpected. As reported in our Comment in March, the judgment has very significant implications for planning decisions across the country and CEC is seeking to maintain that its policies continue to be applicable, despite them being time-expired and there being an accepted lack of five year supply.

Lord Justice Lindblom’s ruling in the Court of Appeal  did make clear that paragraphs 14 and 49 of the NPPF do not make ‘out-of-date’ policies irrelevant in the determination of planning applications or appeals. Instead, the weight to be attributed to ‘out-of-date’ policies is a matter for planning judgment by the decision maker. In the Derby case, the Inspector still gave significant weight to the Green Wedge policy despite the adopted local plan being time-expired and an acknowledged housing land supply shortfall. This conclusion was based on an assessment of the role and function of the Green Wedge policy and the contribution of the appeal site itself to achieving those aims.

We will be monitoring the ‘leave to appeal’ closely and provide further comment in due course. If you would like to discuss potential implications in the meantime, please get in touch.