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Supreme Court issues ruling on NPPF paragraph 49

Words: Laura Edgar
Green belt / Shutterstock_121315348

The Supreme Court has delivered its verdict on the application and meaning concerning paragraphs 14 and 49 of the National Planning Policy Framework (NPPF), overturning the Court of Appeal’s interpretation of the phrase “relevant policies for the supply of housing”.

The ruling means appeals by Suffolk Coastal District Council and Cheshire East Borough Council against a Court of Appeal decision in March 2016 were dismissed.

A development in Cheshire and another in Suffolk brought about the case – one was approved, the other refused. Neither council were at the time able to demonstrate a five-year supply of housing land as stated in the NPPF.

On appeal, the Cheshire inspector decided that the council’s countryside and green gap policies were policies for the supply of housing and therefore “out of date” while the Suffolk inspector considered the settlement boundary and countryside policies to not be policies for the supply of housing and therefore found them to be “up to date”.

Both decisions were challenged on the basis the decision-taker had misunderstood the scope of the term “policies for the supply of housing”.  

The legal case brought the two together: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.

The Court of Appeal’s judgment broadened the definition of the “relevant policies for the supply of housing” detail 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, such as green belt designation.

Therefore, where a local authority cannot demonstrate an up-to-date five-year land supply, these relevant polices were to be considered as not up to date.

In July 2016, the two councils were granted permission to challenge the Court of Appeal’s decision in the Supreme Court – the first time the Supreme Court has considered the NPPF.

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”.

“In neither case is there any reason to treat the shortfall in the particular policies as rendering out of date other parts of the plan which serve a different purpose.”

According to the Supreme Court, 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.”

Like the Court of Appeal, the Supreme Court said it is paragraph 14, not paragraph 49, that provides the “substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed”.

This means permission should be granted unless adverse impacts would significantly and demonstrable outweigh the benefits when assessed against the NPPF’s policies taken as a whole. This would also apply where specific policies in the NPPF indicate development should be restricted.

The Supreme Court upheld the planning inspector’s decision from 2014 that 146 dwellings could be built on open land on the edge of Willaston, a village near Crewe.

In Suffolk, the council refused permission for a development of 26 houses in Yoxford, which was upheld by an inspector on appeal. The High Court quashed this refusal, which the Court of Appeal upheld.  This will now need to be redetermined.

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

Reaction to the ruling can be found here.

Image credit | Shutterstock