Supreme Court clarifies interpretation of planning policy framework

The Supreme Court held that the Court of Appeal’s interpretation of what are “relevant policies for the supply of housing” in paragraph 49 of the NPPF was wrong, and that the words used should be given a narrow meaning as suggested by the two councils.

Giving the leading judgment, Lord Carnwath made it clear it is not the role of the courts to define what “policies for the supply of housing” are, taking the view that it simply refers to policies which deal with the numbers and distribution of new housing and not those which seek to restrict housing.

Despite this, the Supreme Court was satisfied that the Court of Appeal had reached the right conclusion in each case.

The decision effectively means that where an applicant or appellant can show a local planning authority (LPA) is unable to demonstrate a five-year housing land supply (5YHLS), the relevant policies should be considered out of date and given limited weight. It is immaterial whether the failure to show a 5YHLS is due to the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies.

The presumption in favour of sustainable development should apply, subject only to the last line of paragraph 14 of the NPPF. Permission should be granted unless any adverse impacts of doing so would significantly and demonstrable outweigh the benefits when assessed against the NPPF’s policies taken as a whole, or where specific policies in the NPPF indicate development should be restricted.

As for the result:

  • in the Suffolk Coastal case the High Court had ruled that an inspector had erred and quashed his refusal and the Court of Appeal upheld the decision. The Supreme Court’s judgment means this decision will be remitted for redetermination;
  • in the Cheshire East case, the application was allowed by an inspector on appeal. The decision was overturned in the High Court but the Court of Appeal reversed that decision. The Supreme Court’s judgment means the grant of permission will stand and development can commence.

In addition, as part of the judgment the Supreme Court has clarified the law in regard to:

  • the legal basis for national planning policy;
  • the relationship between national planning policy and the development plan;
  • the role of the Planning Court in interpreting the meaning of policy as distinct from its application.

This judgment gives some hope to developers that, where there are questions surrounding available housing land supply, local authorities will start to apply some logical judgment when weighing up and applying development plan policies.

For more information about the Supreme Court’s judgment, or to discuss any licensing matters, please contact Fred Quartermain or another member of Thrings' Planning team.

[1] Richborough Estates Partnership v Cheshire East Council and Suffolk Coastal District Council v Hopkins Homes [2017] UKSC 37

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