The Decisions
The Supreme Court recently dismissed two appeals made by two local planning authorities after the decisions of two planning applications: Hopkins Homes v Suffolk Coastal District Council and Richborough Estates v Cheshire East Borough Council. One of which had been refused and the other approved, respectively.
The Cheshire East application was submitted in 2014 for the development of 146 houses in the Green Gap between Willaston and Crewe, Cheshire. Cheshire East initially refused the scheme on the grounds that the site lies outside Willaston’s settlement boundary and within the Green Gap of protected land. The application was then sent to appeal, and the inspector approved the application, claiming that the council had failed to determine the application properly. The council then succeeded in High Court on grounds that The Inspector had failed by treating certain local policies as relevant under Paragraph 49 of the National Planning Policy Framework (NPPF). The decision was then reversed by the Court of Appeal.
The Suffolk Coastal application was submitted in 2013 for 26 new houses in Yoxford, Suffolk. The council refused the application and this decision was upheld by the inspector on appeal after he considered which local policies were relevant within the supply of housing. The High Court then stated that the inspector had been mistaken in thinking that Paragraph 49 only applied to “policies dealing with the positive provision of housing” and therefore disallowed the refusal.
The Supreme Court then went on to review both cases. The decisions were challenged over misunderstanding the relevance of policies concerning supply of housing, but ultimately the Supreme Court reached the same result as the Court of Appeals for both cases. These were made in regard to Paragraphs 14 and 49 in the National Planning Policy Framework (NPPF), concerning housing land supply and the presumption in favour of sustainable development.
Paragraph 14 covers the presumption in favour of sustainable development and also contains the “tilted balance” provision, where if the development plan does not address the supply of housing through policy or the policies are out-of-date, permission shall be granted. This can only be the case if the advantages of the development outweigh any adverse impacts.
Paragraph 49 is considered in conjunction with Paragraph 14 when determining out-of-date policies and mentions “relevant policies for the supply of housing,” which the Supreme Court has deemed refers to housing supply policies. However, they have also said that the paragraph’s key purpose is to act as a trigger for the “tilted balance” provision under Paragraph 14. Paragraph 49 states that policies should not be considered up-to-date if the local planning authority cannot demonstrate a five-year housing supply. Following this, consideration should be given to determining what weight any housing policies within the development plan hold in light of the lack of a five-year supply. This will purely be a planning judgement.
The appeals from the two authorities came from two conflicting decisions by planning inspectors. One decision ruled that any policy influencing housing development be deemed relevant, while the other decided that only policies specifically concerning housing supply are relevant. The Court of Appeal then defined relevant policy’ to include all policies that create or constrain land.
Both local authorities were granted permission to challenge the Court of Appeal’s definition, and the case was then overtaken by the Supreme Court, which ruled that’relevant policy’ requires a narrow interpretation. Going forward, this means that policies that do not specifically relate to housing supply will not be considered out-of-date in situations where a local planning authority cannot demonstrate a five-year supply.
The Supreme Court has also stated that in situations where there is no five-year supply, Paragraph 14 is triggered, and restrictive policies will continue to be relevant. Nevertheless, these policies will carry less weight where a five-year supply cannot be demonstrated. Exactly how much weight will be given will be at the discretion of the individual decision-maker.
In summary, this means that Richborough Estates have been successful in defending their planning permission, which was gained through an appeal in 2014, for 146 houses in Willsaton, Cheshire. Hopkins Homes’ refusal will have to be reconsidered by the council but as the Supreme Court agreed with their view that the original decision was legally flawed, the proposal can be heard again and judged fairly in line with policy.
The verdict
While there has been a wide range of feedback, most commenters are on the same page regarding the decision.
Paul Campbell of Richborough Estates, Jonathan Clay of Cornerstone Barriers, and Phillip Ridley from Suffolk Coastal District Council all agreed positively that the Supreme Court’s decision was a welcome one and will provide much-needed clarity on planning law that has often caused problems for applications.
Trevor Ivory from DLA Piper UK has been less positive, claiming that Paragraph 49 will now be irrelevant going forward and the decision maker will now have responsibility deciding which policies to give weight to and which are the reason for under-performance.
Jay Das of Wedlake Bell LLP hopes that the decision means that more housing can be built on unplanned sites where councils cannot demonstrate a five-year supply, and Justin Cove of Nexus Planning has stated that we are now likely to see greater consideration given to other restrictive policies.