Two councils lacked a five-year supply of housing land. Did that make every policy restricting housing out of date, including policies protecting the countryside? The Supreme Court considered that question under the 2012 National Planning Policy Framework. Its answer explains why the same housing shortage could leave a planning permission intact in one village and require a fresh decision in another.
The two proposals
The appeals concerned the meaning of paragraph 49 of the National Planning Policy Framework and its relationship with the statutory development plan. Paragraph 49 says that housing applications should be considered in the context of the presumption in favour of sustainable development, and that relevant policies for the supply of housing should not be considered up to date if the authority cannot demonstrate a five-year supply of deliverable housing sites.
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At Yoxford, Hopkins Homes sought permission for 26 houses. Suffolk Coastal District Council refused in September 2013. An inspector dismissed the appeal in July 2014. The High Court quashed that decision and the Court of Appeal agreed. At Willaston, Richborough Estates sought permission for up to 170 houses. Cheshire East Borough Council did not determine the application in time. An inspector allowed the appeal in August 2014 and granted permission for up to 146 dwellings. The High Court quashed that decision, but the Court of Appeal restored the permission. Both councils appealed.
Plans, guidance and the tilted balance
Section 70(2) of the Town and Country Planning Act 1990 requires regard to the development plan, so far as material, and to other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the decision to accord with the plan unless material considerations indicate otherwise. The Framework is national guidance and a material consideration. It does not displace the priority given by statute to the development plan.
Under paragraph 14 of the 2012 Framework, where a plan was absent or silent, or relevant policies were out of date, the starting point was to grant permission. Adverse impacts could outweigh the benefits, but they had to do so significantly and demonstrably. That weighting in favour of permission became known as the tilted balance. A separate exception applied where specific policies indicated that development should be restricted. Footnote 9 gave examples, including Green Belt and heritage policies. Paragraphs 47 and 49 connected that approach to the requirement for a five-year supply of deliverable housing sites.
The meaning of paragraph 49
The Court of Appeal had read policies for the supply of housing widely, as including policies that affect supply by restricting locations for housing. It also held that an out-of-date policy is not irrelevant and that weight is for the decision-maker.
Lord Carnwath read the phrase in its ordinary sense. A policy identifying land for housing is a housing supply policy. A countryside protection policy may affect how much housing can be built, but that effect does not change its purpose. Where an authority lacked the required five-year supply, paragraph 14 applied whatever the reason for the shortfall. A recently adopted Green Belt policy did not thereby become out of date. Its weight was a matter for the planning decision-maker.
Lord Gill agreed with the disposal and with the narrow reading. In his view, the relevant policies are those by which acceptable sites are identified and the five-year target is to be achieved. If the authority is in default, those policies should not be treated as up to date, although they retain statutory force. The decision-maker then applies paragraph 14. The presumption can be displaced only where adverse impacts significantly and demonstrably outweigh the benefits, assessed against the Framework as a whole, or where specific policies indicate that development should be restricted.
Willaston
The adopted plan ran only to 2011 and was out of date apart from paragraph 49. The inspector treated policies protecting open countryside, the green gap between settlements, and housing in the open countryside as policies for the supply of housing. On Lord Carnwath’s reading, that treatment of the countryside policy was wrong, but the error did not undermine the decision. The inspector was entitled to reduce the weight of restrictive policies so far as their settlement boundaries reflected out-of-date housing requirements. He recognised the green-gap policy’s separate purpose and found no significant harm to the separation of the settlements. His conclusion followed the language of paragraph 14. The permission was therefore valid.
Yoxford
A local plan had been adopted in 2013, but its housing provision fell short of the full assessed need and an early review was expected. The inspector rightly treated the housing-numbers policy as out of date for paragraph 14. He treated the settlement policy and the policy for key service centres as up to date because they were not specifically housing policies, and he attached particular weight to the village boundary as defined in the very recently adopted plan.
Lord Carnwath held that this categorisation was inappropriate. The boundary was, at least in part, the counterpart of the housing policies, and its weight might need to be reduced under paragraph 14 if the housing objectives were to be met. The inspector should not have let its supposed status under paragraph 49 add to its weight. He also considered the site on its merits, but it was not clear that his decision would have been the same. The decision therefore had to be quashed.
The Supreme Court rejected the further criticism of his treatment of historic parkland, a non-designated heritage asset. Saved policies are not replaced by the Framework. He assessed their weight by their consistency with it, as paragraph 215 requires, and his concluding planning balance supplied the required judgment on harm and significance.
Verdict: The Supreme Court unanimously dismissed both councils’ appeals. At Willaston, the inspector’s permission for up to 146 homes stood. At Yoxford, the refusal was quashed. The planning appeal had to be decided again.
Source: Suffolk Coastal District Council v Hopkins Homes Ltd and another [2017] UKSC 37
