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18/03/2016

'Nationally significant' judgment may loosen local development constraints

Words: Simon Wicks

A landmark Court of Appeal decision clarifying the meaning of “relevant policies for the supply of housing” in the NPPF could have far-reaching implications for green belt development.

The judgment, issued this week after a January hearing, broadens the definition of the “relevant policies” expression in paragraph 49 of the NPPF so that it can be taken to refer to all policies that “create” or “constrain” land for housing development - including green belt designation.

In effect, where a local authority cannot demonstrate an up-to–date five-year housing supply, then these other “relevant policies” also cannot be considered as being up to date. 

It then becomes a matter for the “decision maker” to determine the weight that should be given to these policies when deciding on applications – but on the understanding that the “presumption in favour of sustainable development”, outlined in paragraph 14 of the NPPF, would now apply.

In their judgment, Justices Jackson, Vos and Lindblom said their interpretation of paragraph 49 recognised that that “the concept [of relevant policies] extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, polices 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.”

They went on: “It reflects the reality that policies may serve to form the supply of housing land either by creating it or constraining it – that policies of both kinds make the supply what it is.

The combined appeal brought two cases together: Hopkins Homes vs Suffolk Coastal District Council and Richborough Estates vs Cheshire East Borough Council.

In Suffolk, the case related to a settlement boundary for which, the Council argued, NPPF paragraph 49 did not apply. In the Cheshire case, the appeal related to an application for 146 homes on a 16-acre ‘green gap’ site near Nantwich, which the Council is in the process of seeking to upgrade to green belt.

Richborough had argued that the green gap policy should be given reduced weight in the Council’s decision on the application because it was a “relevant policy for the supply of housing”.

The Council, however, had insisted that the policy was not relevant because it was concerned with preventing coalescence between Willaston and Crewe. The High Court had previously accepted this argument, prompting Richborough to take the case to appeal on the basis that there had been several contradictory High Court judgements on the interpretation of paragraph 49.

Richborough founder and director Paul Campbell said: “We were arguing for decision makers to be given the ability to determine a planning judgement on what constitutes a policy for the supply of housing as it affects a specific area.

“We were never seeking for green gap policies to be disapplied in their entirety, but more that the weight is tempered when a five-year housing supply cannot be demonstrated.”

Campbell said that the Court of Appeal decision was of “national significance” with a “direct effect on housing delivery across the country”.

Permission to appeal to the Supreme Court was refused.

The judgment in cases C1/2015/0583 and C1/2015/0894 can be read in full on the Landmark Chambers website [pdf]

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