Court of Appeal approach to "policies of the supply of housing" overturned
In a dramatic and far-reaching judgment, the Supreme Court has overturned the received wisdom on the vexed question of the meaning and application of the term "policies for the supply of housing" and the "presumption in favour of sustainable development" introduced to national planning policy in paragraphs 49 and 14 of the National Planning Policy Framework.
The main ground argued by the local authorities, Suffolk Coastal District Council and Cheshire East District Council, was that a narrow meaning should be given to the term "relevant policies for the supply of housing" in paragraph 49 NPPF, rather than the wide interpretation given by the Court of Appeal and supported by the Government, which meant that policies protecting the countryside, Green Belt, AONB and designated heritage assets were "deemed" to be out of date if the Council could not demonstrate that there was a deliverable 5 year' supply of housing land.
Although the appeals by Suffolk Coastal District Council and Cheshire East DC were dismissed on other, less important grounds, the local authorities' success on the main ground means that the unanimous decision of the Court of Appeal and 6 of the 7 decisions on the question in the Planning Court have been found to be wrongly decided in relation to the main issue on which permission to appeal to the Supreme Court was given.
For Suffolk Coastal District Council, the finding in the lead judgement of Lord Carnwath, that their Local Plan policies restricting development in the countryside and seeking to encourage new development only within the settlement boundaries are not "policies for the supply of housing" is seen as a very important protection of the environment in the District.
The decision also makes important findings on other key issues relating to:
- The scope of Footnote 9 of the NPPF which includes related local plan policy as well as policy in NPPF
- The weight to be given to policy where there is no 5year housing land supply;
- The relationship between interpretation and application of policy having regard to Tesco v Dundee
Suffolk Coastal D.C. were also successful in arguing that the approach taken by the Inspector who had found that the development would be unacceptable in the historic parkland of Grove Park and his treatment of Heritage Asset policy was a "faithful application of the guidance in paragraph 215 of the Framework" and that the decision letter was "an admirably clear and carefully constructed appraisal of the relevant planning issues in the light of the judicial guidance then available". The Court expressed "reluctance" in quashing the decision on narrower grounds concerning the weight to be afforded to the settlement boundaries, that had been carried forward from an earlier plan.
Jonathan Clay and Ashley Bowes of Cornerstone Barristers were instructed by Suffolk Coastal D.C., with Jonathan Clay representing the Council throughout all levels of the 4 year legal battle. Martin Kingston Q.C. of No 5 Chambers led the arguments on the main point concerning paragraph 49 for both Cheshire East, with Hugh Richards and Suffolk Coastal with Jonathan Clay and Ashley Bowes.
Jonathan Clay comments:
"This is a welcome decision not only for the clarity that it brings to a complex and much fought over area of planning law and policy, but also because it asserts in the clearest terms the primacy of the development plan and the policies of the Local Plan through which local people can shape and protect their own environment while accommodating the development they need."
Suffolk Coastal District Council v Hopkins Homes Ltd & Richborough Estates Partnership LLP v Cheshire East Borough Council  UKSC 36.
Click here to view the judgment.
Jonathan Clay and Ashley Bowes are presenting a breakfast seminar on the judgment on Wednesday 24th May. Please contact us to register your interest in attending.
What was the background to the case?
The case arose from two planning appeals for housing schemes, one in Cheshire and one in Suffolk, one was allowed and one was dismissed. Both concerned local councils which could not demonstrate a five-year supply of housing land in accordance with national policy. On a broader level, the case was also about the degree to which the Secretary of State for Communities and Local Government, a member of the Executive, can produce national planning policy which seeks to influence the exercise of an administrative discretion which is entrusted to decision takers by Parliament with an express statutory obligation to afford priority to the policies of the statutory development plan, rather than national policy.
Paragraph 49 National Planning Policy Framework ("NPPF") provides that where a council cannot demonstrate a five-year supply of housing land, "... relevant policies for the supply of housing should not be considered up-to-date ...".
The Cheshire inspector decided that the Council's countryside and green gap policies were policies for the supply of housing and therefore "out of date". He afforded a conflict with them limited weight. Whereas, the Suffolk inspector considered the settlement boundary and countryside policies were not policies for the supply of housing and therefore found them to be "up to date". He afforded a conflict with them substantial weight.
Both decisions were challenged on the basis the decision taker had misunderstood the scope of the term "policies for the supply of housing".
The meaning and scope of that phrase had been considered by the Planning Court on seven separate occasions from October 2013 and April 2015, with varying results.