On 10 May 2017, the Supreme Court handed down its eagerly anticipated judgment in respect of two housing appeals against decisions made by Suffolk Coastal District Council and Cheshire East Borough Council. The case centered on the appropriate interpretation of paragraphs 14 and 49 of the National Planning Policy Framework (NPPF). Both appeals had been brought on the ground that the decision-maker in each case had misunderstood the key NPPF phrase "relevant policies for the supply of housing".
This is not the first time that this had been the subject of judicial consideration. On seven separate occasions between October 2013 and April 2015, the Administrative Court ruled on this, with little consistency between the judgments. One expects that the Supreme Court judges were rather pleased that they would finally get to have their say on this when these appeals finally landed on their desks. Indeed Lord Carnwath explained at the very beginning of his judgment that this was an issue of "controversy" in respect of which the court had been urged "to bring much needed clarity to the meaning of the policy". Below I will explain the judgment and consider its wide ranging implications.
1. What does the NPPF say?
Paragraph 49 of the NPPF 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."
Paragraph 14 of the NPPF explains that for decision-taking, the presumption in favour of sustainable development 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 at the end of this section provides examples of such "specific policies".
2. How had this been interpreted previously?
A key question arising out of the above is: What are "relevant policies for the supply of housing"? Following the numerous and varying judicial decisions on this, the planning world thought that they finally had an answer (albeit one that many disagreed with) when Lindblom LJ handed down his judgment in the Court of Appeal in March 2016. Lindblom LJ had considered there to be three competing interpretations:
- Narrow: Housing supply policies only.
- Wider: Housing supply policies plus other policies that restrain supply by restricting housing development in certain parts of the authority's area.
- Intermediate: As for 2 (Wider) above but excluding policies that protect specific areas or features such as a specific landscape designation.
Lindblom LJ decided that the wider interpretation was correct and that the narrow interpretation was "plainly wrong". The consequence of this was that if a local authority could not demonstrate a five-year supply of deliverable housing sites then other policies such as those protecting the countryside, Green Belt, AONB and designated heritage assets were all automatically deemed to be 'out-of-date' for the purposes of paragraph 14.
3. How did the Supreme Court interpret this?
Lord Carnwath described Lindblom LJ's judgment in the Court of Appeal as "impressive"…before promptly overturning that judgment. The Supreme Court instead adopted the narrow interpretation. In justifying this, Lord Carnwath gave the example that a recently approved Green Belt policy in a local plan could not be described as out of date merely because the housing policies in a different part of the plan failed to meet the NPPF objectives for the supply of housing.
Importantly, however, Lord Carnwath explained that the focus should not be on defining individual policies but on asking whether there is a housing shortfall. If the answer is yes then it is irrelevant which policies are inadequate because the shortfall itself is enough to trigger the presumption in favour of the grant of sustainable development.
4. What else did the Supreme Court say?
The Supreme Court also considered more generally the status of the NPPF. Lord Carnwath confirmed that, for decision-making, the NPPF is no more than "guidance" and a material consideration when determining planning applications. He stated that the NPPF "cannot, and does not purport to, displace the primacy given to the statute and policy to the statutory development plan".
Clarification was also provided in respect of the list of "specific policies" given in footnote 9 of paragraph 14. Lord Carnwath confirmed that this list is non-exhaustive and that it is not limited only to the policies within the NPPF but also includes the related development plan.
The Supreme Court's judgment has, generally, been positively received by the industry so far and is considered to have brought much needed clarity to a complex area of planning. That is not to say that it is all now plain sailing (I hear my fellow lawyers breathing a sigh of relief). This remains a complex area fraught with difficulties for decision-makers, not least because there has been yet another shift in approach. I expect to see many appeals in due course where decision-makers have, or are alleged to have, misunderstood the policy.