A Court of Appeal ruling, seen as providing much-needed clarity over the proper meaning of the National Planning Policy Framework (NPPF) in relation to local authorities’ obligations to demonstrate a five-year supply of housing, is to go under challenge at the Supreme Court next year.
According to Cheshire East Council, it and Suffolk Coastal District Council have been granted leave to appeal in their joined cases, following a Court of Appeal decision in March on the meaning and scope of paragraph 49 of the NPPF. The paragraph says that “relevant policies for the supply of housing should not be considered up to date if the local authority cannot demonstrate a five-year supply of housing sites”.
The specific issue at stake in the two cases is how to decide whether a policy “comes within” paragraph 49, and is therefore to be disapplied in the event that a five-year supply cannot be shown. That then engages the presumption in favour of sustainable development under paragraph 14, giving developers a higher chance of success if they can convince a court that the local authority’s five-year supply policy is flawed.
Giving the Court of Appeal’s decision, Lindblom LJ said: “In our view, the meaning of those words, construed objectively in their proper context, is ‘relevant policies for the supply of housing’. This corresponds to the ‘wider’ interpretation which was advocated by the secretary of state in these appeals.
“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 recognises 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.”
He added that the court had sought to “bring much-needed clarity to the meaning for the policy”, with obvious benefit for local planning authorities, developers and local communities.
It is anticipated that the authorities will argue in favour of a narrower definition at the Supreme Court. According to Cheshire East Council, the case is due to be heard between April and July 2017.