Supreme Court Judgement – It looks like 20% of the annual housing target will still continue to be delivered by appeal

On the 10th May 2017, the Supreme Court handed down its Judgement on the application and meaning of paragraph 14 and 49 of the National Planning Policy Framework (NPPF).  The Judgement will have wide ramifications for the planning and development industry.

The Supreme Court case was brought to court by Suffolk Coastal District Council and Cheshire East Borough Council, against a Court of Appeal decision issued in March 2016.  The Court of Appeal case came about after two appeals were decided wherein each Inspector gave differing weights to policies that were considered to be ‘relevant policies for the supply of housing’ where a Council do not have a five-year housing land supply.

The Supreme Court noted that the main issue is not how to define these particular policies, but whether there is a five-year housing land supply in accordance with the objectives set by paragraph 47.

If there is a failure in that respect, it matters not whether the failure is 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 is enough to trigger the operation of the second part of paragraph 14.”

Whilst the Supreme Court had found the Court of Appeal had interpreted paragraph 49 incorrectly it did agree that is it paragraph 14, not paragraph 49, that provides the “substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.”  As a result, if a Council does not have a five-year housing land supply then no planning judgement is necessary to engage paragraph 14 and the decision maker will need to decide on the weight given to relevant policies, subject to the ‘tilted balance’.

Our view

The judgement reaffirms the primacy of the development plan, even where Councils cannot demonstrate a 5-year housing land supply.  It is expected that this decision will encourage Councils to rely on countryside protection policies to refuse applications, which will mean Inspectors will be required to make a judgement on the weight to give to these policies when this situation occurs.  Whilst this decision does allow Councils to give reduced weight to their own policies if they do not have a five-year housing land supply, we do not consider this is likely to happen.

This Judgement and the recent Written Ministerial Statement (December 2016) changed the ‘goal posts’ in areas with a Neighbourhood Plan where Councils are now only required to demonstrate a three-year housing land supply.  It is becoming increasingly difficult for appellants to ensure Inspectors are in a position to give sufficient weight to material considerations in favour of the appeal, where sites are in conflict with an adopted development plan or neighbourhood plan.  With Councils in such a strong position, we envisage that over the next few years there will be a new emphasis on promoting sites for the next stage of development plans; where Councils have only adopted their Core Strategy and still need to adopt a Site Allocations Document.

What has not changed, as a result of this Judgement is the effects of being in a more precarious position: where Councils do not have an adopted development plan, cannot identify a five-year housing land supply or where there is no neighbourhood plan.  It is felt that these authorities are likely to be the focal point of activity in the development industry, until the next Judgement or Ministerial Statement presumably shifts emphasis again.

We consider this Judgement will likely result in an increase in appeals.  This is at a time when there are more appeals being heard than ever; research by Indigo Planning has shown that 40,000 dwellings were approved at appeal in 2016.  To put this in perspective this represents 20% of the Government’s stated target number of 200,000 homes per annum.  This clearly demonstrates that the current plan-led system is creaking and may not be fit for purpose.

Gareth Sibley

Senior Planning Consultant

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