On 10 May 2017 the Supreme Court handed down the much anticipated judgement in the Cheshire East / Suffolk Coastal cases heard in February this year.
Both appeals related to the correct interpretation of paragraph 49 of the National Planning Policy Framework (NPPF), as well as the NPPF’s relationship with the statutory development plan. Summaries on the background of both cases and the judgement are as follows:
Suffolk Coastal District Council v Hopkins Homes Ltd
Suffolk Coastal District Council refused planning permission for a scheme of 26 new dwellings in Yoxford, which was subsequently upheld by an Inspector at appeal. The Inspector considered which local policies were “relevant policies for the supply of housing” within the meaning of paragraph 49 of the NPPF. The appellants appealed the Inspector’s decision. The High Court held that the Inspector had erred in thinking that paragraph 49 only applied to “policies dealing with the positive provision of housing” and so quashed the refusal. The Council then appealed the High Court decision. The Court of Appeal upheld the decision. The Council then appealed to the Supreme Court.
Richborough Estates Partnership LLP and anor v Chesire East Borough Council
Cheshire East Borough Council failed to determine the application and Richborough Estates’ appeal was allowed by the Inspector. The Council appealed the Inspector’s decision. The Council succeeded in the High Court on the basis that the inspector erred in treating one of the local policies as a relevant policy under paragraph 49 and in seeking “to divide the policy, so as to apply it in part only”. That decision was reversed by the Court of Appeal. The Council then appealed to the Supreme Court.
The Supreme Court Judgement
The Supreme Court unanimously dismissed both Councils’ appeals.
Overarching Consideration for the Purpose of the Framework
Upon the judgement, Lord Gill raised a point regarding the respective role of the courts and of the planning authorities and the Inspectors in relation to guidance and the specific interpretation arising from para 49 of the NPPF. It was stressed that policy statements (Local Policy documents) should always be interpreted objectively and in direct accordance as they are stated in their proper context. It was agreed that the same should apply to guidance documents such as the NPPF. Furthermore, it was made clear that policy statements should always be viewed and considered with the broad purpose of the guidance.
National Housing Supply
Also upon judgement, the Court emphasised the national problem of the unmet demand for housing and the fact that the Framework is clear on this, with Section 6 stating “Delivering a wide choice of high quality homes” and the purpose of paragraph 47 is to “boost significantly the supply of housing”. Further to this, it was emphasised that planning authorities are to ensure that plans meet the full, objectively assessed needs for market and affordable housing in the housing market area as-long-as the scheme is in accordance with the policies as set out in the Framework.
Preservation of Green-Belt
It was acknowledged that apart from the constraints on housing supply, environment and amenity policies and their designations within the Green belt are knowingly preventing planning authorities from meeting their required five-year housing supply.
Furthermore, and in summary, the Supreme Court has clarified the law on the following:
- The legal basis for national planning policy and its weighting;
- The relationship between national planning policy and local development plans and the balance between these;
- The role of the Planning Court in interpreting the meaning of policy as distinct from its application;
- The operation of the Presumption in favour of Sustainable Development (NPPF – para. 14);
- The range of policies covered by the phrase ‘relevant policies for the supply of housing’ (NPPF – para 49).
The full judgement can be viewed here.
Both local authorities were successful on the main ground, being a narrow interpretation of paragraph 49, which means that other decisions in the Court of Appeal and the Planning Court have been found to be wrongly decided on the main issue. This has implications for current planning applications and planning appeals.
Although the judgement rejects the wider interpretation of the relevant polices of the development plan, the significance of this is not as great as it first sounds and it ultimately arrives at the same conclusions with regard to the appeals. In doing so, it makes the point (as the Lindblom J Court of Appeal Judgement did) that irrespective of whether a policy for the supply of housing (or anything else) is ‘out of date’ it does not mean that the policy carries no weight or limited weight.
The Statutory Development Plan has primacy, whilst the NPPF itself makes clear that in respect of the determination of planning applications it is not more than “guidance”.. In essence, a policy in an adopted Plan cannot be completely disregarded whether or not it is ‘out-of-date’. It remains for the decision maker to consider the weight to be given to individual policies within the development plan alongside other material considerations as part of the planning balance. Where a Council cannot demonstrate a 5-year housing land supply of deliverable sites then the weight to be given to individual policies whether for the supply of housing or not needs to be considered within the tilted balance provided by paragraph 14 of the Framework and having regard to the presumption in favour of sustainable development unless the two instances where it is not to be applied for decision taking are met.
Ultimately, in the case of both appeals, despite the difference in interpretation of policies for the supply of housing, the fundamental point remained that neither Council could demonstrate a 5-year housing land supply and therefore paragraph 14 is engaged. In the case of the Richborough case, the validity of the permission granted at appeal has been upheld but in the case of the Hopkins Appeal it will need to be re-determined as, in refusing the appeal, the Inspector erred in determining that the settlement boundary was up to date and gave it significant weight when, as a counterpart to the housing policies its weight should have been reduced under para 14.
Overall, it appears that the interpretation of the above stated policies within the NPPF continues to be narrow and will be very much “business as usual”. Council’s still have a lot of power and retain the discretion about which policies are relevant and which are not. However, the amount of weight to be applied should be judged against the need for development within the area. The fundamental point is that the need to ensure an adequate supply of housing is an important part of the decision-making process.
Bidwells will continue to monitor the progress and it will be interesting to see how the Hopkins appeal re-determination progresses.