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Court of Appeal rules on meaning of "relevant policies for the supply of housing"

Out-Law News | 24 Mar 2016 | 2:35 pm | 2 min. read

The Court of Appeal has confirmed that the definition of "relevant policies for the supply of housing" in paragraph 49 of the National Planning Policy Framework (NPPF) should be interpreted widely.

The Court's judgment has consequences for every planning decision made in an area without a demonstrable five year supply of housing land. It confirms that not only local policies that positively dictate how many homes should be built and where, but also those that might in any way restrict where housing may be developed must be considered out-of-date in such decisions.

According to NPPF paragraph 49:"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

The consequences of policies not being considered up-to-date are outlined in NPPF paragraph 14, which requires planning permission to be granted in such cases unless: "any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole; or specific policies in this Framework indicate development should be restricted".

The Court of Appeal considered the scope of the definition of "relevant policies for the supply of housing" in two joined appeal cases in January. In a judgment handed down last week, appeal judge Lord Justice Lindblom said "the obvious purpose of [paragraph 49]" was that the words meant "relevant policies affecting the supply of housing."

"Our interpretation of [NPPF paragraph 49] 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," said Lord Justice Lindblom. "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 - 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 limited development."

The judge said a policy might be "relevant" for the purposes of paragraph 49 "either because it is a policy relating specifically to the provision of new housing in the local planning authority's area or because it bears upon the principle of the site in question being developed for housing". He said that it was for the decision-maker to decide whether a given policy was "relevant" and how much weight such a policy should be given in the determination of a planning application or appeal.

Planning expert Mike Pocock of Pinsent Masons, the law firm behind Out-Law.com, said: "This is a significant judgment which offers much needed clarity on the interpretation of paragraph 49 of the NPPF.  The scope of “relevant policies for the supply of housing” had been considered by the Planning Court on no less than six occasions previously with varying approaches taken. House builders will be delighted that this judgment provides clear direction on the interpretation of paragraph 49. However, at the same time it should be remembered that ultimately its application remains a matter of planning judgment."