Planning for housebuilders – a significant judgment

The Court of Appeal has given a nationally significant judgment on the correct interpretation of paragraph 49 of the National Planning Policy Framework (NPPF) in the case of Suffolk Coastal District Council –v- Hopkins Homes Limited and The Secretary of State for Communities and Local Government [2016] EWCA Civ 168.

As a reminder paragraph 49 states:

“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 correct interpretation of paragraph 49, and in particular what constitutes a “relevant policy” is a matter that has been put before the Court a number of times with mixed results. In granting permission to appeal the Judge at the first instance recognised that this was an area that required clarification from the Court in order to assist planning authorities and other interested parties in how the framework should be applied.

The Court directed itself that the true meaning of paragraph 49 should be “Faithful to the words of the policy, read in their full context and not in isolation from it”. On that basis, the meaning of “Relevant Policies” could be given three interpretations:

• narrow – to mean only policies that directly and positively concern housing provision;
• intermediate – meaning that some restrictive policies would qualify as relevant policies but others would not;
• wide – which would include both policies providing positively for the supply of new housing and other counterpart policies whose effect is to restrain the supply by restricting development in certain parts of the authority’s area.

After deliberation the Court settled upon applying the wider interpretation to the meaning of “relevant policies”.  This means that all relevant policies regarding the supply of housing contained in a planning authority’s policies will also be deemed to be out of date unless the local authority is able to demonstrate a five year supply of deliverable housing sites.

Examples of policies which could be determined to be out of date include policies for greenbelt land, policies for the general protection of countryside, policies for conserving landscape of Areas of Outstanding Natural Beauty and National Parks and policies for the conservation of wildlife or cultural heritage.

This planning decision is significant. It is likely to make a local planning authority’s task in protecting land more onerous unless it maintains a five year housing supply plan although it must be stressed this will always be tempered with the requirement for development to be sustainable.

For more information please contact Lucy Smallwood on lucy.smallwood@michelmores.com or 01392 687555