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Court rulings send framework signals

This article appeared in Planning Resource (subscription needed) on 25th July 2014.

Several recent High Court cases involving housing proposals have considered the interpretation of paragraphs 14, 47 and 49 of the National Planning Policy Framework (NPPF). Paragraph 14 refers to a "presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking". But does it apply only to schemes found to comprise sustainable development?

In William Davis Ltd v Secretary of State for Communities and Local Government [2013], the judge accepted the secretary of state's submission that paragraph 14 applies only to schemes deemed sustainable. But in June, the judge in Dartford Borough Council v Secretary of State found that Davis does not first require a free-standing decision on whether a development is sustainable before considering whether paragraph 14 applies.

Paragraph 49 states that "relevant policies for the supply of housing" in a development plan are rendered out of date if there is a shortfall in housing land supply. In Davis, the judge adopted a narrow interpretation of "relevant policies", ruling that a Leicestershire council's green wedge policy did not relate to the supply of housing and was therefore not rendered out of date.

Case law is clear that, without an up-to-date local plan, the first stage is to look at housing needs.

In March, South Northamptonshire Council v Secretary of State and Barwood Land and Estates adopted a broader approach by examining "the degree to which a particular policy generally affects housing numbers, distribution and location in a significant manner". This gave more scope for a policy to be rendered out of date, the judge ruled. However, the disparity was reconciled in South Northamptonshire Council v Secretary of State and Barwood Homes, decided on the same day. The judge decided that the narrower Davis approach applies to policies protecting specific areas or features; where the same policy applies to land defined generally, such as "countryside", a broader interpretation would apply.

Paragraph 47 states that planning authorities must meet their full objectively assessed housing needs within the context of NPPF policies. In development management decisions the case law is clear that, without an up-to-date local plan, the first stage is to look at an area's full objectively assessed housing needs without considering policy constraints on development.

That principle is codified by paragraph 2a-004 of this spring's National Planning Practice Guidance. However, paragraph 3-030 is not entirely consistent with this. It leaves open the ability to bring in other relevant policy constraints, such as green belt and areas of outstanding natural beauty. R (Hunston Properties Limited) v St Albans City and District Council and Secretary of State found that green belt constraints could be taken into account at the decision-making stage, after the objectively assessed need position had been considered.

Richard Ground, barrister, Cornerstone Barristers

Matthew Lewin of Cornerstone Barristers contributed to this article