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10/05/2017

Reaction to Supreme Court ruling on the NPPF

Words: Laura Edgar
Countryside / Shutterstock_3386768

Following the verdict by the Supreme Court on the application and meaning of paragraphs 14 and 49 of the National Planning Policy Framework (NPPF), interested parties have shared their thoughts.

The Supreme Court case was brought following a Court of Appeal decision in 2016.

It found that the Court of Appeal’s interpretation of what “relevant policies for the supply of housing” means was wrong. It said that the “straightforward interpretation is that these words refer to the policies by which acceptable housing sites are to be indentified and the five-years supply target is to be achieved. That is the narrow view”.

The phrase refers to only housing policies of the development plan, rather than those that seek to protect the environment, including the green belt.

The legal case brought the decisions of two planning applications for different councils together: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.

Positive step forward for the industry

 

Paul Campbell, joint managing director at strategic land company Richborough Estates said the clarification by the Supreme Court is “demonstrable” and is a “positive step forward for the industry at large”.

“The court was clear in its ruling that while restrictive development policies such as those in relation to a green gap remain relevant, if there is no five-year supply of housing available the weight given to them should be judged against the need for development within the area.

“While this determination of the weighting is still a matter for the decision-maker to determine – and some local planning authorities are likely to try to make an interpretation that best suits them – this is a major step in the right direction to removing some of the potential trip hazards within the planning system and ensuring there is an adequate supply of housing.”

Asserts clearly the primacy of the development plan

 

Jonathan Clay, of Cornerstone Barristers and a representative for Suffolk Coastal District Council, said: “This is a welcome decision not only for the clarity that it brings to a complex and much fought-over area of planning law and policy, but also because it asserts in the clearest terms the primacy of the development plan and the policies of the local plan through which local people can shape and protect their own environment while accommodating the development they need.”

Power in the hands of the decision-maker

 

Trevor Ivory, planning head at law firm DLA Piper UK, who led the team acting for Hopkins Homes, said the ruling “renders paragraph 49 irrelevant”.

Now, the decision-maker will “need to have regard to the extent to which particular policies of the development plan are the reason for the underperformance when deciding what weight to give to those policies in the application of the titled balance – regardless of whether they are housing supply policies or not”.

He said that even if the decision-maker concludes that a policy is part of the problem, they would still also have a wide discretion as to the weight to attach to the issue.  

“Planning by appeal therefore looks set to continue, with developers unhappy about local planning authority refusals looking for a very different weighting from the secretary of state and his planning inspectors."

Right to take matter to Supreme Court

 

Philip Ridley, head of planning at Suffolk Coastal District Council, said that while the appeal has been dismissed, the Supreme Court has “fully endorsed the key substantive points we were seeking to raise”.

"Although it is disappointing to see the appeal dismissed, the judgment makes it clear that we were right to take the unusual step of taking this matter to the Supreme Court. The judgment has provided clarification on important issues of planning law and policy relevant not only to Suffolk Coastal but also to many councils which, like us, are seeking to ensure that much-needed housing is provided in the right locations.”

He said the Supreme Court agreed with the council that the local plan is a “prime factor” to be taken into account when making planning decisions.

"This is a victory for those of us wanting to follow a proper planning process and communities across east Suffolk will be greatly relieved, as it shows us the strength of the local plans and gives us a defence against inappropriate development in the future.”

Ruling may be sufficient to allow more approvals

 

The Supreme Court’s decision should mean that more housing is capable of being built on unplanned sites where local councils cannot demonstrate a five-year supply of deliverable housing sites in its area, according to Jay Das, partner in the planning team at law firm Wedlake Bell LLP.

She said the ruling has confirmed that paragraph 49 needs to be read “holistically together” with other policies in the NPPF, such as paragraph 14, which is designed to boost housing supply.

“This is the guiding principle upon which councils should decide what weight to give to policies (which would otherwise limit housing development) in their development plan.”

"The question of whether policies are policies for the supply of housing is therefore of marginal relevance. The ruling may in itself be sufficient to allow many more permissions to be granted where councils cannot demonstrate a five-year land supply for housing."

Clear message for planning industry

 

Katherine Evans, head of planning at law firm TLT, said: “Through unanimously dismissing both councils’ appeals, the Supreme Court has given the planning industry a clear message, although as always the devil is in the detail.”

She said decision-makers now understand where their role in the process lies.

“Helpfully, the court clarified that the NPPF does not displace the primacy of the statutory development plan in respect of non-housing policies when considering planning applications. Given the myriad of political issues surrounding housing policy, however, it remains to be seen how this is applied in future applications.

“The judgment will also be of particular importance to green belt and other environmental policies, as the court ruled that up-to-date policies should still be applied through paragraph 14 – even where authorities fail to demonstrate a five-year land supply and fall foul of paragraph 49.”

Could result in more appeals being lodged

 

Justin Cove, associate director at planning consultancy Nexus Planning, said the ruling represents a significant shift for decision-makers to contend with.

“While significant weight is already applied to protecting the green belt where there is an absence of a five-year housing land supply, we are now likely to see greater weight applied to other ‘restrictive’ policies.”

For Cove, this is likely to result in a rise in the number of appeals being lodged that involve applications outside the defined urban area.

“At the local authority level, where a wider interpretation of paragraph 49 has generally been relied upon, this will probably cause more applications to be refused than otherwise might have been.

“Given the subjectivity involved in this highly sensitive decision-making process, we can expect to witness a varied range of appeal decisions over the coming months and years as decision-makers tackle each particular circumstance.”

Green belt position to remain the same

 

Planning consultancy Turley noted that 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, Turley continued, 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.”

The consultancy also said the weight to be given to green belt policy remains subject to the applicant/appellant being able to demonstrate very special circumstances.

“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.”

The Supreme Court’s ruling can be found here (pdf).


Read more:

'Nationally significant' judgment may loosen local development constraints

Councils secure permission to appeal to Supreme Court over housing supply policies

Supreme Court issues ruling on NPPF paragraph 49


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