The recent judgement handed down by the Supreme Court on two cases; Suffolk Coastal District Council v Hopkins Homes Ltd & Richborough Estates Partnership LLP v Cheshire East Borough Council [2017], has been hotly anticipated, not least because it is the first time that the NPPF has been considered by the Supreme Court.
Background to the cases:
Both cases were for housing developments in rural locations. Hopkins Homes sought planning permission for 26 houses on parkland, outside the settlement boundary. Whilst Richborough Estates sought planning permission for 146 homes within a green gap in Cheshire East. Neither council were able to demonstrate a five-year housing land supply. The former was refused, the latter was allowed.
Court of Appeal:
Both decisions were taken to the Court of Appeal over a perceived misunderstanding by the decision makers over the scope of a particular term in paragraph 49 of the National Planning Policy Framework (NPPF) (underlined below):
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.“
The Court of Appeal concluded that the correct approach was to apply a broad interpretation, taking it to refer to all policies that create or constrain land for housing development, not just those that relate to housing.
Supreme Court:
Both Suffolk Coastal and Cheshire East Council challenged the Court of Appeal’s decision in the Supreme Court, maintaining that the Court of Appeal’s broad interpretation of Paragraph 49 was incorrect.
Judgement was handed down earlier this month and whilst the Supreme Court dismissed the Council’s appeals, they acknowledged that the Court of Appeal had misinterpreted Paragraph 49, stating that a: “straightforward interpretation is that these words refer to the policies by which acceptable housing sites are to be identified and the five-years supply target is to be achieved. That is the narrow view”. Furthermore: ‘No one would naturally describe a recently approved green belt policy in a local plan as “out of date”, merely because the housing policies in another part of the plan fail to meet the NPPF objectives.’
So what is the judgement actually saying:
It seems to be a decision which appeases both the local councils and the developers, but the central message from the judgement is that pragmatism in decision making is key.
Whilst the judgement finds favour with a narrow view of Paragraph 49, it clearly highlights that planning is all about balance, as Lord Carnwath states:
“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. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which 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.”
Which means…:
The key messages from the decision include:
1) Significantly boosting housing supply is a central theme of NPPF;
2) It provides a clear explanation of the purpose of paragraph 49 which acts as a trigger, if there is no 5 Year Housing Land Supply, to initiate the “tilted balance” for all sustainable development under paragraph 14;
3) Apply planning judgement in decision making and carefully weigh up the planning balance to asses the consequences of a housing deficit against those policies that are restricting housing supply.
The judgment has resulted in Richborough Estate’s permission being reinstated and the appeal decision to refuse planning for the Hopkins Homes application has been sent back to the Planning Inspectorate.
No doubt the decision will take time to find its feet, and planning by appeal looks set to continue. But the judgment acts as an important reminder that a holistic approach to planning is the key to creating positive places and homes.
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IMAGE SOURCE: Art UK 2017