In joined appeals Hopkins v SSCLG and Cheshire East DC v SSCLG [2016] EWCA Civ [168] the Court of Appeal considered the scope of paragraph 49 of the National Planning Policy Framework, which is engaged where a council cannot demonstrate a five-year supply of deliverable housing sites in accordance with paragraph 47 of the NPPF.
The importance of the paragraph is that if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites, such policies are not to be considered as up-to-date. Where this is so, the strong presumption in favour of sustainable development in paragraph 14 may be engaged.
The Court of Appeal held that paragraph 49 of the NPPF means “relevant policies affecting the supply of housing”. As such, it extends to policies by which a material degree of restraint is imposed on both the location and amount of new housing development and therefore extends to policies such as the green belt, areas of outstanding national beauty and national parks. However, footnote 9 of the NPPF ensures that such policies will continue to be relevant even where the development plan in which they sit, has become absent, silent or out-of-date.
Following many previous High Court decisions offering significantly differing approaches, the Court of Appeal overruled William Davis v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin) and stated that the weight to be given to an out-of-date policy is a matter for the decision maker. The weight a decision-taker may attach to a policy for the supply of housing will depend on a number of factors, including “… the extent to which relevant policies fall 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 – such as the protection of a ‘green wedge’ or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment”.
This is a seminal statement on the extent of paragraph 49 of the NPPF and defines the relationship between housing and environmental policies, with far reaching implications.
Permission to appeal to the Supreme Court was refused.
Martha Grekos is a partner and head of planning at Irwin Mitchell
