Court of Appeal clarifies meaning of “policies for the supply of housing” at paragraph 49 NPPF

01 Jan 2018

Planning and Environment

In joined appeals Hopkins v SSCLG and Cheshire East DC v SSCLG [2016] EWCA Civ [168] the Court of Appeal considered the scope of paragraph 49 NPPF, which is engaged where a Council cannot demonstrate a five-year supply of deliverable housing sites in accordance with paragraph 47 NPPF.

There had been a range of judicial opinion in the Planning Court, ranging from a wide construction (Lewis J. in Cotswold District Council v Secretary of State for Communities and Local Government and others [2013] EWHC 3719 (Admin)) to a narrow construction (Lang J. in William Davis Ltd. v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin)).

In a 44 page judgement, the Court of Appeal (Lindblom LJ giving judgment) has held at [32] that paragraph 49 NPPF means “relevant policies affecting the supply of housing”. As such, it extends to “policies by which a material degree of restraint [is] imposed on both the location and amount of new housing development” at [53]. Paragraph 49 does therefore extend to policies such as the Green Belt, AONB and national parks. However, footnote 9 NPPF, ensures that such policies “will continue to be relevant” even where the development plan in which they sit, has become absent, silent or out-of-date see [39]

Whilst the Court identified Tesco v Dundee [2012] UKSC 13 as the binding authority, Lindblom LJ held at [45] that whether a particular policy of the development plan is a “policy for the supply of housing” is “not a question for the Court” rather, it is a question for the decision taker. It does therefore appear that the Court has consciously scaled back its jurisdiction to construe policy as a matter of law, leaving matters instead to decision makers to afford such weight to policies as they saw fit, having first properly directed themselves as to scope.

The weight a decision taker may attach to a policy for the supply of housing will depend on a number of factors, including at [47]

“… the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a “green wedge” or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment”

Significance of Heritage Assets

The Court also found that the Inspector had failed properly to provide a “distinct and clearly reasoned assessment of the effect the development would have upon the significance of the parkland [the site of the development] as a “heritage asset”, and, crucially, the “balanced judgment” called for by paragraph 135, “having regard to the scale of any harm or loss and the significance of the heritage asset”.

Jonathan Clay and Ashley Bowes appeared for Suffolk Coastal District Council.

Please click here to read the judgment in full.