Residential development

March 18th, 2016

There were two important issues before the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168: (1) what is the meaning of “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (“the NPPF”)?  (2) How are those policies to be applied?

The Court of Appeal gave a wide interpretation to “relevant policies for the supply of housing”. The Court ruled that they are not confined to policies that provide positively for the delivery of new housing, in terms of numbers and distribution or the allocation of sites.  The concept extends to plan policies the effect of which is to influence the supply of housing land, by restricting the locations where new housing might be developed.

Lindblom LJ, delivering the Judgment of the Court, stated, at paragraph 25, that their interpretation of the policy in paragraph 49 of the NPPF must be “faithful to the words of the policy, read in their full context and not in isolation from it”. He continued:-

“26.    The broad context is provided by the policies of the NPPF read as a whole … The Government’s aim of providing “the supply of housing to meet the needs of present and future generations” in paragraph 7 of the NPPF is reflected generally in the policies for sustainable development, in the policies for plan-making, and in the policies for decision-taking. It is part of the “social role” of the planning system in achieving sustainable development referred to in paragraph 7 of the NPPF. And it sits in the part of the NPPF where the Government has gathered its policies for delivering “sustainable development” …

27. The more specific context is set by the policies for housing development in the paragraphs immediately preceding and following paragraph 49, in the section devoted to the Government’s objective of “[delivering] a wide choice of high quality homes”… These policies are partly directed to plan-making and partly to decision-taking. Underlying them all is the basic imperative of delivery. Where they concern plan-making, their aim, very clearly stated at the beginning of paragraph 47, is to “boost significantly the supply of housing”. The first requirement in that paragraph – that an authority must “ensure” that its local plan meets the “full, objectively assessed needs” for housing, “as far as is consistent with the policies set out in [the NPPF]” – involves the making of an objective assessment of need before considering the impact of other policies in the NPPF… The second requirement is for local planning authorities to “identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …”.

28.… for many years successive governments have relied on the planning system to increase the supply of housing land. At least since the 1970’s national planning policy has contained either an objective or a requirement for local planning authorities to identify and maintain a five-year supply of housing land. Between 1988 and 1992 there was a policy presumption in favour of planning permission being granted for housing where no five-year supply existed in the authority’s area … The advent of the NPPF marked a significant policy shift. …

28. The policy in paragraph 49 is not a policy for plan-making; it is a policy directed to the consideration of “[housing] applications”. But it is linked to the policy for plan-making in paragraph 47 in a very obvious way, because it is predicated on the requirement for the local planning authority to “demonstrate a five-year supply of deliverable housing sites”.

29. Paragraph 49 is also connected to the policy for the application of the “presumption in favour of sustainable development” in paragraph 14 …”

30.  We turn then to the words of the policy themselves, viewed in the context we have described

31. The contentious words are “[relevant] policies for the supply of housing”. In our view the meaning of those words, construed objectively in their proper context, is “relevant policies affecting the supply of housing”. … Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A “relevant” policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bears upon the principle of the site in question being developed for housing. … The “supply” with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable “five-year supply of deliverable housing sites”. Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does no violence at all to the language. On the contrary, it is to construe the policy exactly as it is written

32. Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan 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. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”

Moving on to how the policy in paragraph 49 of the NPPF is to be applied, Lindblom LJ said:-

“43.    When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.

44. The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be …

45. Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, …, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.

46. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker …”

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