On 17 March 2016 the Court of Appeal gave judgment in the linked appeals Suffolk District Council v Hopkins Homes Ltd & SSCLG and Richborough Estates Partnership LLP v Cheshire East Borough Council & SSGLG [2016] EWCA Civ 168. The decision would appear to put to rest years of controversy, played out in numerous planning appeals and a confusing welter of High Court judgments, as to the meaning of ‘relevant policies for the supply of housing’ in paragraph 49 of the NPPF.

The key paragraphs in the judgment of the Court (delivered by Lord Justice Lindblom) are 32-48.

In a nutshell, the Court of Appeal has approved the ‘wider’ approach to ‘relevant policies’ advanced by the Secretary of State, construing the words to mean ‘relevant policies that affect the supply of housing’ (writer’s emphasis added) (judgment, paragraph 32), and so including:

policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development’ (judgment, paragraph 33).

Such restrictive policies may (the Court emphasised ‘may’) have the effect of constraining the supply of housing land, in which event if a LPA is unable to demonstrate the requisite five-year-supply then those policies are liable to be regarded as not up to date for the purposes of NPPF paragraph 49 and so out of date for the purposes of NPPF paragraph 14 (judgment, paragraph 35).

The Court described the ‘narrow’ interpretation of ‘relevant policies for the supply of housing’, in which the words were to be construed as meaning ‘relevant policies providing for the amount and distribution of new housing development and the allocation of sites for such development’, as ‘plainly wrong’ (judgment, paragraph 34). The Court likewise rejected the so-called ‘intermediate’  or  ‘compromise’  construction  of  the wording, in which the ‘narrow’ construction was widened to capture restrictive policies of a general nature but not restrictive policies whose purpose is more specific (judgment, paragraph 36). Whilst the Court considered the distinction between ‘general’ purpose and ‘specific’ purpose restrictive policies in the development plan might be relevant to the application of NPPF paragraph 49 and the weight to be given to a particular development plan policy in the planning balance, it could not affect whether a policy fell within NPPF paragraph 49 as a matter of principle (judgment, paragraph 37).

Importantly, though, given the confusion apparent in some of the first-instance decisions, the Court of Appeal has confirmed that not only do the restrictive policies of the NPPF itself listed at NPPF footnote 9 remain relevant ‘even where the development plan is absent, silent or relevant policies are out of date’ (judgment, paragraph 39), but likewise even ‘out of date’ development plan policies may remain relevant and may be given weight (judgment, paragraph 46). This does not mean the continuing relevance of the NPPF footnote 9 restrictive policies renders development plan policies that are out of date up to date, but that both the restrictive policies in the NPPF and out of date policies in the development plan continue to command such weight as the decision- maker reasonably finds they should have (judgment, paragraphs 39, 46).

As to that weight, the Court of Appeal has here injected shades of grey into a debate that has often been treated as black and weight. The weight to be given to ‘out of date’ development plan policy will vary according to the circumstances, including such as the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the LPA to address the shortfall, or the particular purposes of a restrictive policy, and the Court envisaged ‘many cases’ in which restrictive policies would be given sufficient weight to justify the refusal of planning permission despite being ‘out of date’ under NPPF paragraph 49, weight always being a matter of planning judgment for the decision-maker (judgment, paragraph 47).

The Court also emphasised that the NPPF is a policy document, which does not displace the statutory presumption in favour of the development plan and operates  within  the  statutory  framework  of  s.70(2) of the 1990 Act and s.38(6) of the 2004 Act, albeit as government policy it is ‘likely always to merit significant weight’ (judgment, paragraph 42).

Finally, whether a particular plan policy is a relevant policy ‘for the supply of housing’ in the sense explained by the Court is a matter for the decision-maker, not the court. Provided the decision-maker correctly construes NPPF paragraph 49 in line with the Court’s interpretation, this is a matter for his planning judgment reviewable only on Wednesbury grounds (judgment, paragraph 45).

To put flesh on the bones of the careful approach to planning decision-making the judgment confirms is required: if, for example, a decision-maker concludes that a development plan green belt policy is a ‘relevant policy’ and ‘out-of-date’ for the purposes of NPPF paragraph 49 due to a housing supply shortfall, not only do the NPPF footnote 9 restrictive policies, which include the NPPF’s green belt policy, still apply with full force, but the ‘out- of-date’ development plan policy may still lawfully carry greater weight than the NPPF’s housing supply policies, dependant of course on the circumstances.

Whilst developers will doubtless welcome confirmation that the ‘wider’ construction of NPPF paragraph 49 is the correct one, there is plainly plenty in the decision to counter-act the significance of that finding. The mood of the Court is well-captured by this concluding comment:

‘The policies in paragraphs 14, 47 and 49 of the NPPF  are not, as we understand them, intended to punish a local planning authority when it fails to demonstrate the requisite five-year supply of housing land. They are, however, clearly meant to be an incentive. As Sir David Keene said in paragraph 31 of his judgment in Hunston: 1 

“Planning decisions are ones to be arrived at in the public interest, balancing all the relevant factors, and are not to be used as some form of sanction on local councils. It is the community which may suffer from a bad decision, not just the local council or its officers.”’

As to what this judgment means for the High Court decisions that have dominated the debate to date, the Court of Appeal confirmed that the “Green Wedge” policy (Policy E20 of the North-West Lincolnshire Local Plan 2002) at issue in William Davis Ltd v SSCGL [2013] EWHC 3058 (Admin) was a ‘relevant policy’ and the decision was wrong to find otherwise. Similarly, the apparent decision in Wenman v SSCLG [2015] EWHC 925 (Admin), that policies D1 and D4 of the Waverley Borough Council Local Plan 2002 were not ‘relevant policies’, was also incorrect.