Town and country planning – National planning policy framework (NPPF) – Housing supply – Developers applying for planning permission for residential development – Issue arising as to 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 NPPF para 49 – Appeals dismissed
In conjoined appeals, Suffolk Coastal District Council (Suffolk) refused planning permission for a development of 26 houses on land in Yoxford, Suffolk, upheld by the inspector on appeal. The High Court held that the inspector had erred in his view that para 49 of the National Planning Policy Framework (NPPF) only applied to policies dealing with the positive provision of housing and quashed his refusal. The Court of Appeal upheld that decision: [2015] EWHC 132 (Admin); [2015] PLSCS 34. Cheshire East Borough Council (Cheshire East) failed to determine an application for outline planning permission for a development of up to 170 houses in Willaston, East Cheshire. The developers’ appeal was allowed by the inspector. Cheshire East’s appeal to the High Court was allowed on the basis that the inspector had erred in treating one of the local planning policies as a relevant policy under para 49 and applying it in part: [2015] EWHC 410 (Admin); [2015] PLSCS 64.
The councils’ appeals were heard together in the Court of Appeal as they both concerned the meaning and effect of para 49, which provided that policies of local planning authorities for the supply of housing should not be considered up-to-date if they could not demonstrate a five-year supply of deliverable housing sites. The Court of Appeal dismissed the Suffolk appeal but allowed the Cheshire East appeal: [2016] EWCA Civ 168; [2016] PLSCS 90.
Paragraph 14 of the NPPF concerned the presumption in favour of sustainable development and included the “tilted balance” provision that, where policies were out-of-date, permission should be granted unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against framework policies as a whole. Both councils appealed to the Supreme Court.
Held: The appeals were dismissed.
(1) The primary purpose of para 49 was to act as a trigger to the operation of the “tilted balance” provision in para 14. Unlike para 49, para 14 was not concerned solely with housing policy. It needed to work for other forms of development covered by the development plan. There might be a relevant policy for the supply of employment land but whether that policy was out-of-date was a matter of pure planning judgment. That reading of para 14 in general also applied to housing policies deemed out-of-date under para 49 which accordingly had to be read in that light. It was not necessary to label other policies as “out-of-date” merely in order to determine the weight to be given to them under para 14.
(2) Paragraph 49 came within a group of paragraphs dealing with delivery of housing. Paragraph 47 set the objective of boosting the supply of housing. In that context, the words “policies for the supply of housing” indicated the category of policies with which the present appeals were concerned. The word “for” simply indicated the purposes of the policies in question. Although that might be regarded as adopting the “narrow” meaning, it should not be seen as leading to the need for a legalistic exercise to decide whether individual policies did or did not come within the expression. The important question was not how to define individual policies, but whether the result was a five-year supply in accordance with the objectives set by para 47.
It mattered not whether any failure in that respect was because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall was enough to trigger the operation of the second part of para 14 which provided the substantive advice by reference to which the development plan policies and other material considerations relevant to the application were expected to be assessed.
(3) In the Cheshire East appeal, the council and the inspector had both erred in treating the relevant policy as one for the supply of housing but that did not detract materially from the force of his 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 the settlement boundaries that in turn reflected out-of-date housing requirements. His final conclusion reflected the language of the tilted balance provision in para 14.
(4) In the Suffolk Coastal appeal, the inspector’s approach was open to criticism (through no fault of his own) because his categorisation of relevant local policies as non-housing policies was inappropriate and unnecessary. It only gave rise to an error of law in so far as it might have distorted his approach to the application of para 14. Overall, the decision letter was a clear and carefully considered appraisal of the planning issues, in the light of judicial guidance then available. However, the decision had to be quashed.
Martin Kingston QC, Hugh Richards, Jonathan Clay and Dr Ashley Bowes (instructed by Sharpe Pritchard LLP) appeared for the appellants; Christopher Lockhart-Mummery QC and Zack Simons (instructed by DLA Piper UK LLP, of Birmingham) appeared for the first respondent in the first appeal; Christopher Young and James Corbet Burcher (instructed by Town Legal LLP) appeared for the first respondent in the second appeal; Hereward Phillpot QC and Richard Honey (instructed by the Government Legal Department) appeared for the interested party in the first appeal and the second respondent in the second appeal.
Eileen O’Grady, barrister
