Landmark judgment handed down

03 Jul 2017

The Supreme Court has handed down its much awaited judgment in the co-joined cases of Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council [2017] UKSC 36.

The courts had come up with conflicting interpretations on paragraphs 14 and 49 of the National Planning Policy Framework (NPPF) and the Supreme Court judgment settled these.

The main points arising from the judgment are what are "relevant policies for the supply of housing" and how does the paragraph 14 presumption in favour of development work where relevant policies are "out of date".

We now know that the "narrow interpretation" of "policies for the supply of housing" in paragraph 49 should be followed.  This therefore captures policies dealing only with numbers and distribution of new housing.

Paragraph 14 states that where relevant policies are out of date, permission should be granted unless:

  1. Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the NPPF policies taken as a whole (known as the "tilted balance"); or
  2. Specific policies in the NPPF indicate development should be restricted (see footnote 9 where there is a non-exhaustive list of such policies, including ANOB, Green Belt, SSSI and National Parks).

The starting point is whether there is a demonstrable five-year housing land supply. If there is, paragraph 14 is not engaged. 

However, if there is no demonstrable five-year land supply, paragraph 14 is engaged and the decision-maker has to consider the "tilted balance" in (a) and whether there are specific policies in play in (b).   

Crucially, the provisions in these paragraphs are just a guide.  The NPPF is a material consideration and so a decision-maker may be perfectly entitled to consider the provisions of paragraph 14 but still grant permission for other reasons.  This is a matter of administrative discretion which the courts will not get involved in – unless there has been an error of law.  

The judgment also contains a "throw-away" comment by Lord Carnwarth that "on any view, the development plan was out of date in that its period extended only to 2011".

This opens up a number of questions and the possibility of further litigation where plans are still in play past their period, yet are meeting the housing land supply demands for that area. Would these still be considered "out of date"?

DMH Stallard has a dedicated planning and environment group. For advice or further information, please contact me via the details below.

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