The Supreme Court has confirmed the correct approach to the NPPF policies on housing land supply, and the overarching presumption in favour of sustainable development, in Suffolk Coastal District Council v Hopkins Homes Ltd and another [2017] UKSC 37. The case concerned two conjoined appeals against the Court of Appeal’s broad approach to the meaning of NPPF49 (which states that “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). The Court of Appeal held that the range of policies to be considered out of date included those “affecting” (not just providing for) housing supply (so including green belt, landscape and green gap-type policies).
Hopkins Homes challenged an inspector’s decision to dismiss its appeal against Suffolk Coastal District Council’s refusal of housing permission despite inadequate housing land supply. Adopting a narrow approach to NPPF49, he considered landscape, countryside and settlement boundary policies not to be housing supply policies. Richborough Estates’ successful appeal – based on a broader application of NPPF14 to similar policies – was challenged by Cheshire East Borough Council. The High Court quashed each decision, on opposing grounds. The Court of Appeal upheld the broad approach, criticising the narrow approach as “plainly wrong” and undermining the purpose of the NPPF policy on housing delivery.
The Supreme Court’s ruling adopts the “straightforward interpretation” of relevant supply policies as those by which “acceptable housing sites are to be identified and the five-years supply target is to be achieved”. As such, notwithstanding the Cheshire inspector’s mistakenly broad treatment of countryside policies as relevant to NPPF49, he was entitled in allowing the appeal 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the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflect out-of-date housing requirements”. The fact that the development plan period had expired meant the policies were out of date in any event.
Conversely, despite having properly concluded that the recently-adopted supply policies were inadequate and so out of date for NPPF14 purposes, the Suffolk inspector had erred by attempting to categorise policies as ‘supply’ or non-supply policies for NPPF49 purposes. In doing so, he failed to recognise that the non-supply settlement boundary policy was largely a function of the housing policies. Rather than giving it added weight as ‘up to date’ by virtue of being unaffected by NPPF49, he should have considered how its weight may need to be reduced to satisfy housing delivery objectives.
The judgment, and the outcomes, make clear that the NPPF does not mandate outcomes and can be read sensibly without the need for legal contortionism. Failed housing supply policies engage the NPPF presumption. Restrictive policies are not downweighted, displaced or switched off. Where they merely shadow failed supply policies, the decision taker must consider how the statutory priority conferred by section 38(6) of the Planning & Compulsory Purchase Act 2004 should be adjusted (having regard to the tilted presumption). Acknowledging that “rigid enforcement” of restrictive policies despite a supply failure is likely to frustrate the “objective of the framework”, the judgment confirms both the freedom and the responsibility in planning to do the right thing.
Roy Pinnock is a partner in the planning and public law team at Dentons
