Town and country planning – National Planning Policy Framework – Planning permission for residential development – Proper application of requirement for sustainable development in NPPF – Correct approach to development plan policies for supply of housing where five-year housing supply not demonstrated – Whether planning inspectors properly applying para 49 on facts of cases before them – First appeal dismissed – Second appeal allowed
These were two conjoined appeals concerning the meaning and effect of government policy in para 49 of the National Planning Policy Framework (NPPF). In particular, the appeals concerned the proper application, in planning decisions, of the requirement under para 49 that policies for the supply of housing should not be considered up-to-date if the local planning authority could not demonstrate a five-year supply of deliverable housing sites.
In the first appeal, the appellant was a local planning authority which had refused a planning application by the respondent for a development of 26 houses on land at Yoxford, Suffolk. The respondent’s appeal against that decision was dismissed by the secretary of state’s planning inspector. In reaching his decision, the inspector found that a five-year housing supply could not be demonstrated but that relevant development plan policies, which set out a hierarchy of different types of location for the distribution of housing development and which militated against the proposed development, should nonetheless be regarded as up-to-date. In proceedings brought under section 288 of the Town and Country Planning Act 1990, the respondent obtained an order quashing the inspector’s decision after the secretary of state conceded that the inspector had misunderstood and misapplied para 49 when considering whether the applicable development plan policies were “up-to-date”.
In the second appeal, the appellant was a developer to which the secretary of state’s planning inspector had granted planning permission for a development of 170 houses on land in Willaston, East Cheshire, on an appeal against the failure of the first respondent council, as local planning authority, to determine the planning application within the prescribed period. The inspector found that there was not a five-year housing supply, that development plan policies relating to housing development in the open countryside and requiring the maintenance of “green gaps” were therefore to be regarded as out-of-date and should therefore be given reduced weight, and that the proposed housing development should be allowed since it would make an important contribution towards housing requirements. The inspector’s decision was subsequently quashed in proceedings brought by the first respondents, again on grounds relating to the inspector’s erroneous application of para 49 of the NPPF: see [2015] EWHC 410 (Admin); [2015] PLSCS 64.
Held: The first appeal was dismissed; the second appeal was allowed.
(1) Para 49 of the NPPF had to be read in its full context and not in isolation. Its general context was provided by the policies of the NPPF as a whole, in which the government’s aim of providing a supply of housing to meet the needs of present and future generations were reflected in the policies for sustainable development, plan-making and decision-taking. Its more specific context was set by the policies for housing development in the paragraphs immediately preceding and following para 49, in the section devoted to the government’s objective of “delivering a wide choice of high quality homes”, which were directed to plan-making and decision-taking. Underlying all of them was the basic imperative of delivery. As set out in para 47, an authority was to ensure that their local plan met the “full, objectively assessed needs” for housing, as far as was consistent with the policies set out in the NPPF, which involved making an objective assessment of need before considering the impact of other policies in the NPPF: Hunston Properties Ltd v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610; [2014] 1 EGLR 79; [2014] EGILR 7 applied. The second requirement of para 47 was 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”.
Para 49 did not set out a policy for plan-making but instead a policy directed to the consideration of applications; however, it was linked to the policy for plan-making in para 47 in an obvious way since it was predicated on the requirement in that paragraph for the local planning authority to demonstrate a five-year supply of deliverable housing sites. Para 49 was also connected to the policy for the application of the “presumption in favour of sustainable development” in para 14. The connection lay in the concept of relevant policies of a development plan not being considered up-to-date, or, in the words of 14, being “out-of-date”. Out-of-date policies for the purposes of para 14 therefore included relevant policies for the supply of housing that, under para 49, were not to be “up-to-date”, and could include policies in a plan for a period that was still running.
(2) Construed objectively in their proper context, the words “relevant policies for the supply of housing” in para 49 referred to relevant policies that affected the supply of housing. Para 49 was therefore not limited in its application to policies in the development plan that provided positively for the delivery of new housing, in terms of numbers and distribution or the allocation of sites, but should be given wider interpretation, recognising that the concept extended to other plan policies which had the effect of influencing the supply of housing land by restricting the locations where new housing might be developed. Such policies might include those relating to the green belt, policies for the general protection of the countryside, for conserving the landscape of areas of outstanding natural beauty and national parks and for the conservation of wildlife or cultural heritage, and various policies with the purpose of protecting the local environment in one way or another by preventing or limiting development. There was no logical basis for distinguishing between restrictive policies of a general nature and those with a more specific purpose. A “relevant” policy was simply a policy which was relevant to the application for planning permission before the decision-maker, either because it was a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bore on the principle of the site in question being developed for housing.
That interpretation reflected the reality that policies might serve to form the supply of housing land either by creating it or by constraining it, and that policies of both kinds made the supply what it was. Accordingly, if a local planning authority were unable to demonstrate the requisite five-year supply of housing land, both the policies of their local plan that identified sites for housing development and policies that were restrictive of such development were liable to be regarded as not “up-to-date” under para 49 of the NPPF and “out-of-date” under para 14. Previous cases in which the courts had rejected the wider interpretation of the policy were not correctly decided on that particular point: William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin); [2013] PLSCS 242, Wenman v Secretary of State for Communities and Local Government [2015] EWHC 925 (Admin); [2015] PLSCS 126 and South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin) not followed.
(2) The NPPF was a policy document and, as such, it should not be treated as if it had the force of statute and it did not, and could not, displace the statutory presumption in favour of the development plan: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447; [1997] 3 PLR 71. Policies in the NPPF, including those relating to the presumption in favour of sustainable development, did not modify the statutory framework for the making of decisions on applications for planning permission but instead operated within that framework. The policies in the NPPF were material considerations but it was for the decision-maker to decide what weight should be given to them so far as they were relevant to the proposal under consideration. Since the NPPF was government policy, it was likely always to merit significant weight, but the court would not intervene unless the weight given to it by the decision-maker could be said to be unreasonable in the Wednesbury sense.
In determining an application for planning permission for housing development, the decision-maker would have to consider, in the usual way, whether or not the proposal accorded with the relevant provisions of the development plan. If it did, the question would be whether other material considerations, including relevant policies in the NPPF, indicated that planning permission should not be granted. If the proposal did not accord with the relevant provisions of the plan, it would be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicated that planning permission should be granted.
(3) The NPPF presented the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step was to consider whether relevant policies for the supply of housing in the development plan were out-of-date because the local planning authority could not demonstrate a five-year supply of deliverable housing sites. An appropriate method of assessment would have to be adopted to gauge the housing land supply: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) applied. Whether a particular policy of the plan, properly understood, was a relevant policy “for the supply of housing” in the relevant sense was a question for the decision-maker, not the court; accordingly, provided that the decision-maker acted on the correct understanding of the policy in para 49 of the NPPF, and also on the correct understanding of the development plan policy in question, it was for him to decide, as a matter of planning judgment, whether the plan policy was a relevant policy for the supply of housing, and the court would only intervene on public law grounds. If the decision-maker found that relevant policies of the plan were out-of-date, then he would apply the presumption in favour of sustainable development in the way mandated by para 14 of the NPPF, again exercising his planning judgment in a manner that the court would review only on public law grounds.
(4) If policies for the supply of housing were out-of-date under paras 14 and 49 of the NPPF, that did not make them irrelevant in the determination of a planning application or appeal, or require them to be given no or minimal weight. The policies in paragraphs 14, 47 and 49 of the NPPF were not intended to punish a local planning authority when they failed to demonstrate the requisite five-year supply of housing land but were meant to be an incentive. While it was possible to infer from para 49 the government’s view that out-of-date policies should normally be less than policies that provided fully for the requisite housing supply, the weight to be given to such policies was not dictated by government policy in the NPPF. It would vary according to the circumstances, including, for example, the extent to which relevant policies fell short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy. The amount of weight to be attached to such policies was, as ever, a matter for the decision-maker.
(5) In the first appeal, had the inspector not misconstrued the policy in para 49 of the NPPF he would not have concluded that the development plan policies to which he referred were up-to-date in the absence of a sufficient five-year housing supply. All those policies were properly to be regarded as relevant policies for the supply of housing since they were all policies by which a material degree of restraint was imposed on both the location and amount of new housing development. Given his conclusion on the five-year housing supply, he should have regarded each of those policies as out-of-date, then applied the presumption in favour of the development plan in accordance with the policy in para 14 of the NPPF, giving to the out-of-date policies such weight as he thought they should have in the particular circumstances. His failure to do so was an error of law that vitiated his decision. The inspector had misunderstood and misapplied national policy for the protection of heritage assets in para 135 of the NPPF. There were no grounds on which the court should exercise its discretion to withhold a quashing order.
(6) In the second appeal, the inspector had proceeded on a correct understanding of the policy in para 49 of the NPPF and of the relevant development plan policies. He had properly exercised his own judgment when resolving which of those policies were within the scope of para 49 and how much weight should be given to them when applying the statutory presumption in favour of the development plan in section 38(6) of the Planning and Compulsory Purchase Act 2004 Act and the policy presumption in favour of sustainable development in the NPPF. He had made no error of law. Both his approach and his conclusions were legally sound and his decision should not have been quashed.
Jonathan Clay and Dr Ashley Bowes (instructed by Sharpe Pritchard) appeared for the appellant in the first appeal; Christopher Lockhart-Mummery QC (instructed by DLA Piper) appeared for the respondent to the first appeal; Christopher Young and James Corbet Butcher (instructed by Gateley plc) appeared for the appellant in the second appeal; Anthony Crean QC and John Hunter (instructed by Sharpe Pritchard) appeared for the first respondent to the second appeal; Hereward Philpott QC and Richard Honey (instructed by the Government Legal Department) appeared for the interested party in the first appeal and the second respondent to the second appeal.
Sally Dobson, barrister
