Deloitte-uk-real-estate

The Supreme Court last week passed judgement on the proper interpretation of paragraph 49 of the National Planning Policy Framework (NPPF) and relevant policies for the supply of housing.

The case also provided the opportunity for the Supreme Court “to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan”.

The case brought the decisions of two planning authorities together: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council.

The judgement dismissed the Councils’ challenges and upheld the Richborough Estates planning permission in Cheshire. The Hopkins Homes appeal against the Suffolk Coastal District Council refusal will have to be re-determined.

Interpretation of the Judgement
The judgement scrutinised the interpretation and weight attached to paragraph 49 of the NPPF which 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” (our underlining).

And the second part of para 14 of the NPPF:

For decision-taking this means:

  • 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”.

(footnote 9 identifies those policies relating to sites protected under the Birds and Habitats Directives and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion. This is not an exhaustive list).

Lord Carnwarth (leading judge) disagreed with the Court of Appeal on their interpretation of the key word “for” in paragraph 49, noting that this word relates to the provision of housing as opposed to other categories of development, such as supply of employment land. It did not, he reasoned, mean “affecting” the supply of housing. This is a narrow interpretation of paragraph 49, contrary to the Court of Appeal’s wider view of policies affecting the supply of housing. Indeed, Lord Carnwarth, who was enjoying his last case before retirement, had some fun with this point, noting that it was wrong to “adopt a reading…which…creates a form of non-statutory fiction”.

Lord Carnwarth said the primary purpose of paragraph 49 of the NPPF is to act as a trigger to the operation of what is known as the “tilted balance” i.e. the presumption in favour of sustainable development under the second part of paragraph 14.

If the Council cannot demonstrate a five year housing land supply, policies that fall within paragraph 49 i.e. those policies relevant to the supply of housing, should be referred to as being out of date and the weight to be given to them then reduced.

While restrictive development policies such as green gaps or a settlement boundary remain relevant, if there is no five-year supply of housing available, the weight given to them should be judged against the need for more market and affordable housing within the area.

Importantly, Lord Gill in commenting on Lord Carnwarth’s judgement makes the point that this balancing exercise applies to all policies including, for instance, Green Belt policies. This provides clarification that the paragraph 14 presumption applies even if the land is subject to the restrictive policies mentioned in the footnote 9 to paragraph 14.

Finally, Lord Carnwath held that the weight to be given to those policies referred to above “alongside other material considerations, within the balance set by paragraph 14, remains a matter for the decision-maker in accordance with ordinary principles”.

The outcome of the judgement in so far as paragraph 14 is concerned is also relevant to other uses, such as employment land.

Conclusion
The judgement reconfirms that in the absence of relevant of up-to-date development plan policies related to housing supply, the balance is tilted in the favour of planning permission except where the benefits are significantly and demonstrably outweighed by the adverse effects, or where specific policies indicate otherwise.

The onus is on promoters to demonstrate, in the absence of up to date housing supply policies, a clearly reasoned assessment of whether the proposals constitute sustainable development, and the effect of the proposals on restrictive housing delivery policies.

Caroline-McDade

Caroline McDade – Director, Deloitte Real Estate

Caroline McDade is a Director in the London Planning Team at Deloitte. Her focus is on adding value to assets through the delivery of planning permissions. Her skills lie in managing large complex multi-disciplinary planning projects for propco’s, developers and institutional investors.

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