The Supreme Court decision of Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2017] UKSC 37 hopefully has now addressed much of the confusion on the correct application of paragraphs 14 and 49 of the National Planning Policy Framework (NPPF) when local planning authorities do not have a five year deliverable land supply.
The case concerned two long running judicial reviews of decisions of planning inspectors in areas for which the relevant local planning authority did not have a five year deliverable land supply. The question in both cases was what was the correct interpretation of paragraphs 14 and 49 of the NPPF.
Paragraph 49 provides:
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.
Paragraph 14 recites the presumption in favour of sustainable development, and then defines this to mean for decision taking:
- approving development proposals that accord with the development plan without delay and
- where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole or
- specific policies in this Framework indicate development should be restricted
Before understanding these policies in context, it must first be understood the statutory basis for decision taking in planning. Specifically, section 38(6) of the Planning and Compensation Act 2004 which states:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
Applying Paragraph 49 – the first stage
The Supreme Court found that there were two distinct issues in paragraph 49. Firstly, the judges adopted a narrow interpretation of what is meant by ‘policies for the supply of housing’. Namely, it is only housing supply policies that are to be considered ‘out of date’ in paragraph 49. The judges disagreed with the Court of Appeal that such term should be extended to other policies that ‘affected’ housing supply.
The second issue was more simply a question of fact as to whether or not there was a five year deliverable land supply. If there was no such five year supply then paragraph 14 was engaged. The Supreme Court noted that it mattered not what policies caused the lack of five year supply.
Applying Paragraph 14 – the second stage
If there is no five year land supply then paragraph 14 is engaged. Paragraph 14 provides for what is commonly caused the ‘tilted balance’ in favour of granting planning permission. Namely, planning permission should be granted unless adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in this Framework taken as a whole or specific policies in this Framework indicate development should be restricted.
Two issues are important to understand in relation to paragraph 14. Firstly, the development plan (including the housing supply policies) retains its statutory force under section 38(6) but the focus shifts to ‘other material considerations’. The ‘other material considerations’ will then be determined in accordance with the national guidance in paragraph 14.
Secondly, whilst the housing supply policies are to be considered out of date for the ‘other material consideration’ assessment (the narrow interpretation) planning weight may still be given to other policies in the development plan. However, such weight must be considered on the ‘significantly and demonstrably outweigh the benefits’ test founded on the golden thread of sustainable development. This ‘tilted balance’ test is a matter of planning judgement and the weight to be given to remaining local development plan policies is a matter for the decision maker.
Finally, Lord Gill noted that the specific policies restricting development in the Framework remain applicable under paragraph 14 includes not only restrictive policies within the Framework itself but also development plan policies for which the Framework refers. The example given being greenbelt policies.
Neighbourhood Planning – Written Ministerial Statement
Though not mentioned in the Supreme Court decision, it is worth noting the effect of written ministerial statement of Gavin Barwell (Minister of State for Housing & Planning) on 12 December 2016 (“the WMS”). The statement provides as follows:
“This means that relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be ‘out-of-date’ under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made:
- This written ministerial statement is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;
- the neighbourhood plan allocates sites for housing; and
- the local planning authority can demonstrate a three-year supply of deliverable housing sites.”
While the WMS is currently the subject of legal challenge, its current effect is to preserve the neighbourhood plan policies as ‘up to date’ within the paragraph 14 ‘tilted balance’ assessment. Therefore, together with all of the other non-local plan housing supply policies, they will remain a material consideration to be weighed under paragraph 14 as part of the planning judgement of the decision maker.
Caution to challengers of planning judgement decisions
The Supreme Court also took the opportunity to re-enforce the role of the Courts in judicial challenges to planning decisions. On matters of planning judgement the judges noted that the planning inspectorate should be considered analogous to that of expert tribunals and that Courts should not unduly intervene in policy judgements within their area of specialist competence.
This highlights the great difficulty applicants will face challenging planning judgement decisions solely on the Wednesbury reasonableness grounds (and especially those of the planning inspectorate).
The Court continued by noting the judges of the Planning Court ‘are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two’.
Lesson: there are no real winners and losers in the Supreme Court’s clarification of the interpretation and application of paragraphs 14 and 49 of the NPPF. For local planning authorities the Court has helpfully retained the material relevancy of non supply of housing policies in the planning judgement of the decision maker. However, at the same time decision makers may likely attach less weight to such policies (as they affect the supply of housing) in their planning judgement under the ‘titled balance’ test in paragraph 14.
