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Supreme Court favours narrow interpretation of 'relevant policies for supply of housing'

Out-Law News | 11 May 2017 | 5:07 pm | 3 min. read

Only those local planning policies dealing with housing-specific questions, such as numbers and distribution of housing, will be deemed out of date in the absence of a five year supply of deliverable sites for housing in a particular area, the UK's highest court has ruled.

The eagerly awaited decision of the UK Supreme Court "provides very welcome clarity" as to how the presumption in favour of sustainable development in paragraph 14 of the National Planning Policy Framework (NPPF) should be interpreted in planning decision-making in the housing context, according to planning law expert Richard Ford of Pinsent Masons, the law firm behind Out-Law.com.

Two local planning authorities (LPAs) had argued in favour of this 'narrow' interpretation of the presumption in separate appeals by developers against planning decisions. The developers had favoured a wider interpretation, which would have extended the concept to apply to policies dealing with the restriction or disposition of new development in an area more generally, for example those dealing with environmental or green belt protections.

"This is good news for LPAs who have been worried about how a wide interpretation would dilute their environmental protection and other constraint policies in their areas," said Ford. "They may have 'lost the battle' in the two appeals, but they 'won the war' in terms of ensuring a narrow interpretation of how the presumption in favour of sustainable development should work if there is no five-year supply of deliverable sites."

"In practice, all this really means is that it is back to business as usual in determining housing planning applications – that is, before the 'wide interpretation' argument gained traction. Essentially, the weight to be given under paragraph 14 to all relevant policies will remain a matter of judgement for the decision-maker, taking into account the particular application and the need to secure an adequate supply of housing land," he said.

The decision was the first by the UK's highest court to deal with the correct interpretation of the NPPF.

Introduced in 2012, the NPPF requires LPAs to identify, and to update annually, a supply of development sites sufficient to meet five years' worth of the local housing need. Where LPAs are not able to demonstrate a five-year supply of housing land, the NPPF says that their planning policies that are "relevant … to the supply of housing" should be considered to be out of date and proposed developments should be granted planning permission unless their adverse impacts "significantly and demonstrably" outweigh their benefits.

In March 2016, the Court of Appeal ruled that this should be interpreted as applying to policies which had the effect of restricting housing development in certain parts of the LPA's area. Along with this, the court overturned refusals to grant planning permission for sites at Yoxford, Suffolk and Willaston, Cheshire by Suffolk Coastal District Council and Cheshire East Borough Council respectively.

Giving the judgment of the Supreme Court, Lord Carnwath rejected this analysis. However, he found in favour of the Court of Appeal's general approach, warning against "a legalistic exercise to decide whether individual policies do or do not come within the expression".

"The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47 [of the NPPF]," he said.

"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 [the presumption in favour of sustainable development]. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which 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," he said.

Lord Carnwath said that although the approach taken by the Court of Appeal ultimately led to the correct conclusion in each of the appeals, by changing the emphasis of the relevant paragraph the lower court "create[d] a form of non-statutory fiction".

"On that reading, a non-housing policy which may objectively be entirely up-to-date, in the sense of being recently adopted and in itself consistent with the [NPPF], may have to be treated as notionally 'out of date' solely for the purpose of the operation of paragraph 14," he said.

"There is nothing in the stature which enables the Secretary of State to create such a fiction, nor to distort what would otherwise be the ordinary consideration of the policies in the statutory development plan; nor is there anything in the NPPF which suggests an intention to do so. Such an approach seems particularly inappropriate as applied to fundamental policies like those in relation to the green belt or Areas of Outstanding Natural Beauty," he said.

"The Supreme Court confirmed the law on the interpretation of policy in the NPPF - that, ultimately, it is a matter of legal interpretation," said planning law expert Richard Ford. "But it also cautioned against too much legal interpretation; saying statements of policy are just that, not statutory texts, and must be read in that light."

"Its conclusion is that the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly; and that where recourse to the courts is needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, the specialist judges of the planning court have an important role," he said.