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Legal: Will the Supreme Court decision on housing policy put an end to cases on the NPPF?

The Supreme Court has issued a judgment on the meaning of paragraphs 14 and 49 of the NPPF. Katherine Evans of TLT analyses the ruling and considers its effect on planners and planning.

In early May, paragraph 49 of the National Planning Policy Framework (NPPF) came under the scrutiny of the Supreme Court. Amongst many other factors considered, a major element of the decision was the Court’s strong stance on the distinction between the roles of the court and planning authorities.

The role of the court

Lord Gill made it clear that the role of the court is to interpret a policy where its meaning is contested, whilst it is for the planning authority to apply the policy to the facts of the individual case. The same is true in relation to guidance documents, such as the NPPF – questions of interpretation are for the courts; those of application are for the planning authority.

The status of the NPPF

The Supreme Court also emphasised the status of the NPPF - it is not a statute and must not be interpreted as such. Its purpose, as Lord Gill commented: "is to express general principles on which decision-makers are to proceed in pursuit of sustainable development." It is guidance and is therefore a "material consideration" for the local planning authority in deciding whether to grant planning permission. However, it does not displace the primacy of the statutory development plan.

Clarity in relation to housing policies

Where a five-year supply of deliverable housing sites cannot be demonstrated, it is only policies "for the supply of housing", and not "relevant to the supply of housing" that will be rendered out of date. Lord Carnwath commented that the latter interpretation of paragraph 49, favoured by the Court of Appeal, not only changed its language "but in doing so creates a form of non-statutory fiction."  He went on to say that it would be a nonsense if, for example, a recently approved Green Belt policy could be judged out-of-date merely because the housing policies in another part of the development plan failed to meet the NPPF objectives.

Where housing policies are out-of-date, the presumption in favour of sustainable development in paragraph 14 of the NPPF, and the test commonly known as the "tilted balance", will come into play.  

How will the decision affect the planning process?

The decision provides clarity on both the status of the NPPF and the role of the court and the planning authority. In stressing that the NPPF "is not to be interpreted as if it were a statute" and that "the application of the guidance…to the individual case is exclusively a planning judgment for the planning authority and the inspectors", the Supreme Court may be drawing a line under cases on the NPPF.

This could put local planning authorities in a stronger position. Where a five year supply of housing cannot be shown, it will be up to the local planning authority to judge the weight given to policies that restrict development (such as those in respect of a green belt) against the need for development in the area. As a result, it could result in dissatisfaction amongst developers, where more weight is given than they consider justifiable.

It remains to be seen whether the number of appeals will rise as a result of the decision. Given that housing supply and delivery are hot on the political agenda, this is unlikely to be the end of the story.

Katherine Evans is head of planning at TLT



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