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What Difference Does it Make? – The Supreme Court’s Judgment in Richborough/ Suffolk Coastal

  • United Kingdom
  • Real estate planning

10-05-2017

The Supreme Court has ruled on what has been acknowledged as an issue of critical importance to the application of national planning policy, namely the proper interpretation of paragraph 49 of the National Planning Policy Framework (NPPF). This requires planning decision makers to treat “relevant policies for the supply of housing” in development plans as not up-to-date if the local planning authority (LPA) cannot demonstrate a five-year supply of deliverable housing sites. If this is the position then housing applications should be considered in the context of the presumption in favour of sustainable development set out in paragraph 14 of the NPPF.

The litigation in the lower courts was concerned with whether particular development plan policies were or were not “relevant policies” for the purposes of paragraph 49. Unfortunately, the High Court came to a variety of conclusions.  Accordingly, the Court of Appeal considered two appeals with a view to providing clarity on this issue.  One related to an application for housing development at Yoxford in the area of Suffolk Coastal District Council and the other near Willaston in the area of Cheshire East Borough Council. In the first decision the LPA’s refusal of permission was upheld by the inspector on appeal, but his decision was quashed in the High Court and that decision was confirmed by the Court of Appeal. In the second, the LPA failed to determine the application, and the appeal was allowed by the inspector. This decision was challenged successfully by the LPA in the High Court but that decision was reversed by the Court of Appeal.

In the Supreme Court, whilst Lord Carnwath described Lindblom LJ’s judgment in the Court of Appeal as “impressive” he highlighted the fact that controversy remains and that the Court now had the opportunity to consider both the narrow issues of interpretation of para 49, and also the broader issues concerning the legal status of the NPPF and its relationship with the development plan.

On the narrower issues, there had been three competing interpretations of paragraph 49 and Lindblom LJ had addressed these in his judgment.  The first of these was the ‘narrow’ interpretation, which meant that “relevant policies” were limited to policies dealing only with the numbers and distribution of new housing, and excluding any other policies of the development plan dealing generally with the disposition or restriction of new development in the LPA’s area. The second was the ‘wider’ interpretation which incorporated both policies providing positively for the supply of new housing and other policies, or “counterpart” policies, whose effect is to restrain the supply by restricting housing development in certain parts of the LPA’s s area. The third interpretation was an ‘intermediate’ approach which coincided with the wider approach but excluded policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation. Lindblom LJ ultimately favoured the ‘wider’ interpretation as he read the words “for the supply of housing” as meaning “affecting the supply of housing”.

In the course of his judgment in the Supreme Court, Lord Carnwath came to a different view. He saw the meaning of paragraph 49 itself, taken in context, as reasonably clear, and not susceptible to much legal analysis. Given its position in a group of paragraphs dealing with delivery of housing, the words “policies for the supply of housing” should be regarded as “housing supply policies”. He did not see any justification for substituting the word “affecting”, which he saw as having a different emphasis. Whilst other groups of policies may affect the operation of housing policies, according to Lord Carnwath that did not make them policies for the supply of housing. Whilst Lord Carnwath acknowledged that this may be regarded as adopting the ‘narrow’ meaning, contrary to the conclusion of the Court of Appeal, he then went on to say that this should not be seen as requiring a “legalistic exercise” involving deciding whether individual policies do or do not come within the expression. He saw the important question as whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is not then it does not matter whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. Fundamentally, the lack of a five year supply is enough to trigger the operation of the presumption in favour of sustainable development.

In his Supreme Court judgment, Lord Gill first of all addressed the broader issues of the respective roles of the courts and LPAs and inspectors in interpreting policy guidance of this kind. He highlighted the fundamental point that the role of the courts to interpret a policy where the meaning of it is contested, while the role of the LPA is to apply the policy to the facts of the individual case. What words mean is a question for the courts, the application of the guidance is exclusively a planning judgment for the LPA and the inspectors. Any specific policy prescriptions must always be interpreted in the overall context of the policy document but against the backdrop of the statutory requirements, not least the primacy of the development plan.

Turning to the more discrete issue of the interpretation of paragraph 49, Lord Gill suggested that there had been too narrow a focus on the wording in paragraph 49. He saw the task of the Supreme Court as being to read it in the overall policy context having in view the planning objective that the NPPF seeks to achieve. Against that backdrop, he also disagreed with Lindblom LJ’s preferred interpretation of “relevant policies for the supply of housing”. He saw the straightforward interpretation of these words as referring to the policies by which acceptable housing sites are to be identified and the five-year supply target is to be achieved – i.e. the ‘narrow’ approach. However, he saw the “real issue” as what follows from that. He made the point that if a LPA without a five year supply continued to apply its environmental and amenity policies “with full vigour” then the policy objective of the NPPF could be frustrated.

Whilst both Lord Carnwath and Lord Gill opted for the ‘narrower’ interpretation of paragraph 49 they both agreed that this should make no difference to the outcome of the appeals. For example, in his judgment Lord Carnwath emphasised that applying the narrow interpretation did not materially detract from the force of the Inspector’s reasoning. He was entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflected out-of-date housing requirements”.

So, the fact that the Supreme Court have favoured a ‘narrower’ interpretation does not mean that “non-housing supply” policies that operate to restrict housing growth will automatically attract more weight. If a LPA cannot demonstrate a five-year housing land supply and has settlement boundary policies in its development plan based on an out-of-date housing requirement, the decision maker is still entitled to reduce the weight to be given to such restrictive policies - particularly if they take the view that there is an overarching policy imperative to boost the supply of housing. However, where a development plan policy is directed at the protection of local amenity, there is an argument that that it should attract greater weight in the light of the Supreme Court decision.

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