The meaning of “relevant policies for the supply of housing” for the purposes of paragraph 49 of NPPF

May 18, 2016

By Peter Dixon

Paragraph 49 of the National Planning Policy Framework (‘the Framework’) provides that development plan policies for the supply of housing should not be considered to be up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

The Court of Appeal considered the meaning of ‘policies for the supply of housing’ in conjoined appeals arising from challenges to the decisions in two residential planning appeals (Suffolk Coastal District Council v (1) Hopkins Homes Ltd (2) SSoCLG; Richborough Estates LLP v (1) Cheshire East Borough Council (2) SSoCLG [2016] EWCA Civ 168). Faced with submissions from the parties contending for either a narrow interpretation (confining the term to policies that provide positively for housing development, for instance by specifying housing numbers or allocating sites) or a wide one (in which the term encompasses all policies relevant to the supply of housing, including restrictive policies such as Green Belt and AONB) the Court concluded that ‘policies for the supply of housing’ means ‘relevant policies affecting the supply of housing’ stating as follows:

“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 recognizes 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 – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”

Later in the judgment the Court stated as follows:

“Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, as Ouseley J. said in paragraph 48 of his judgment in Barwood Land, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.”

It is understood that each of the local planning authorities involved in the decision are seeking permission to appeal to the Supreme Court.