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Articles Planning 23rd May 2017

Planning Update: Tilting the balance

The case law has been a muddle on the presumption in favour of sustainable development justifying the grant of planning permission if a Council does not have a 5 year housing land supply and, consequently, its planning policies for the supply of housing are out of date. With three differing interpretations taken in numerous planning appeals and Court cases, it was inevitable the issue would reach the Supreme Court. The landmark decision has finally arrived in Suffolk Coastal DC v Hopkins Homes and Richborough Estates v Cheshire East BC [2017] UKSC 37 with great hopes of certainty afterwards, but has the muddle been resolved?

The judges stressed that the NPPF is no more than guidance and cannot ‘displace the primacy’ of a statutory development plan of Local Planning Authorities in determining planning applications. The courts should respect the expertise of specialist planning inspectors who are presumed to have understood the policy framework correctly.

The operation of the ’tilted balance’

In the absence of relevant up to date development plan policies, the balance is tilted in favour of sustainable development and granting planning permission except where the benefits are ‘significantly and demonstrably’ outweighed by the adverse impacts or where specific policies in the NPPF indicate otherwise.

The main issue in the case was: what are the ‘relevant policies for the supply of housing’ that are deemed out of date if the Council does not have a 5 year housing land supply? The Court noted that such policies can be out of date on that basis, even where they have been recently adopted.

The Supreme Court unanimously held that the Court of Appeal’s interpretation of paragraph 49 of the National Planning Policy Framework (NPPF) was wrong and the ‘relevant policies for the supply of housing’ should be construed narrowly. The ‘policies for the supply of housing’ deemed out of date as a result of a local planning authority’s lack of a 5 year housing land supply are those dealing with the ‘numbers and distribution of housing’ and not the counterpart policies as well that restrict the location of development generally, including for housing, such as AONB, green belt, open countryside and ‘green gaps’, which affect the supply of housing. The Court rejected the latter wider interpretation.

The Court also stressed that the NPPF is no more than guidance and cannot ‘displace the primacy’ of a statutory development plan under S38(6) of the Planning and Compulsory Purchase Act 2004 in determining planning applications.

In determining the application under S38(6), whilst these counterpart policies cannot now be considered out of date solely on account of the lack of a 5 year housing land supply, the Court gave a clear steer that it would generally be reasonable to give the counterpart policies reduced weight to reflect that they are derived from settlement boundaries that in turn reflect the out of date housing policies, as was upheld in the Richborough Estates case. Additionally, although it is not obvious from the NPPF itself, the Court also held that whether the adverse impacts of granting planning permission outweigh the benefits, needs to be assessed against not only the policies of the NPPF, but also the development plan policies.

Our view

The results of the two cases heard at the Supreme Court appear odd:

  1. In the Hopkins Homes case, the Inspector correctly adopted a narrow interpretation of the phrase “relevant policies for the supply of housing”, but his decision was quashed; and
  2. In the Richborough Estates case, the Inspector erroneously adopted a wide interpretation, but his decision was upheld.

Initial reporting on the case to date suggests the clarity resulting from the Supreme Court decision will be welcome, however, a closer reading of the decision, regrettably, indicates that the case law remains a muddle. We anticipate more appeals and mostly probably more Court cases.

It is difficult to see that reluctant Councils will grant planning permission where there is not a 5 year housing land supply and they are entitled to treat the counterpart policies such as such as AONB, green belt, open countryside and ‘green gaps’ as up to date, and it is matter of planning judgement for the Councils as to what weight they should give to those policies, not an issue of law that can be challenged in the Courts. If extreme decisions appear, developers are likely to take the issue up with the Courts again.

This outcome that we anticipate in practice will also make it much more difficult for developers to assess the prospects of obtaining planning permission where the Council does not have a 5 year housing land supply. Our view is that this provides less certainty and clarity in practice. Developers will require specialist planning legal and consultancy advice on proposals from an early stage. With our specialist team, we are well placed to advise.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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