The evolving role of the NPPF and paragraph 49
Since the introduction in England of the National Planning Policy Framework (NPPF) in 2012, there has been a proliferation of judicial reviews over its application when determining planning applications for housing.
Perhaps one of the most contentious paragraphs included in the NPPF is paragraph 49, which outlines: “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 UK Supreme Court’s decision in the conjoined appeals of Suffolk Coastal District Council v Hopkins Homes Ltd & Anor and Richborough Estates v Cheshire East Borough Council has shed light on the proper interpretation of paragraph 49, along with issues concerning the legal status of the NPPF and its relationship with the statutory development plan.
The Yoxford Site
Suffolk Coastal District Council refused planning permission for a development of 26 houses on land in Yoxford. The applicant, Hopkins Homes Ltd (“Hopkins”), appealed against this refusal to an Inspector appointed by the Secretary of State, who dismissed the appeal.
Hopkins challenged the Secretary of State’s decision to dismiss the appeal in the High Court, on the grounds that the Inspector had misdirected himself in three respects; including the interpretation of paragraph 49. Following decisions from the High Court and Appeal Court, the case was later heard by the Supreme Court, which upheld the validity of the decision by theSecretary of State’s appointed Inspector.
The Willaston Site
Richborough Estates Partnership LLP (“Richborough”) applied to Cheshire East Borough Council for planning permission to develop up to 170 houses on land situated in Willaston. Following an unfavourable decision for Richborough, the strategic land promotion business appealed after the Council failed to determine the application within the prescribed period. In his decision letter, the Inspector allowed the appeal and granted planning permission for up to 146 dwellings.
The Supreme Court considered that the Inspector’s decision letter overall to be an admirably clear and carefully constructed appraisal of the relevant planning issues, in light of the judicial guidance available at the time of the decision letter. The Supreme Court also noted that the Council’s statutory development plan was out of date, in that its period extended only to 2011.
Notwithstanding this, the Supreme Court reasoned that it was appropriate to quash the grant of planning permission for 146 dwellings. A factor in this was that the Inspector’s decision did not accord with subsequent judicial clarification; that it is for the decision-maker to attach weight to restrictive housing policies, where there is no five-year housing supply.
Prior to the Appeals, the interpretation of paragraph 49 had been considered by the Administrative Court on seven occasions between October 2013 and April 2015, with varying results. In the Appeals, the Supreme Court’s took the opportunity to signal:
- Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies. In that, the specialist judges of the Planning Court have an important role. However, the judges are entitled to expect applicants, who seek to rely on matters of planning policy in applications to quash planning decisions, to distinguish clearly between issues of policy interpretation appropriate for judicial analysis and issues of judgement in the application of that policy;
- The guidance given by the NPPF is not to be interpreted as if it were a statute. Its purpose is to express general principles on which decision makers are to proceed in pursuit of sustainable development, in addition to applying those principles to more specific matters such as those in the Appeals;
- A development plan and the NPPF provide statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may not be determinative of the outcome;
- The courts should respect the expertise of specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, specialist planning inspectors have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies; local or national.
Whatever the legal planning technicalities that were in play, in both cases there was no planning permission to permit the development of housing at the juncture of the Supreme Court’s decision in terms of the Appeals.
In circumstances where planning permission has been successfully obtained, a developer may wish to consider seeking judicial review insurance which provides indemnities against certain losses occasioned by a successful judicial review challenge to a grant of planning permission.