Supreme Court's Ruling on Paragraph 49 of the NPPF - Clarity at last?

On 10 May 2017, the Supreme Court handed down judgment in the joined appeals of Suffolk District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council.

The appeals turned on the proper interpretation of paragraphs 14 and 49 of the National Planning Policy Framework ("NPPF") and particularly the meaning of 'relevant policies for the supply of housing,' which should not be considered up to date where a council cannot show a five-year housing supply.

Planning consultants, solicitors and developers will have sat through many a planning inquiry where the vexed issue of the interpretation of paragraph 49 of the NPPF has been debated at length. The Supreme Court has rejected a broad interpretation of paragraph 49 of the NPPF (i.e. that any policy that has an effect on the supply of housing (e.g. policies that protect the countryside) is covered by the paragraph) and, instead, confined the relevant policies to those by which 'acceptable housing sites are to be identified and the five-year supply target is to be achieved'. The Court of Appeal had previously rejected this approach.

However, the Supreme Court was clear to caution against a 'legalistic approach' to decide whether an individual policy is a housing supply policy or not. Instead, Lord Carnwarth was clear that:

“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]. 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.”

Thus, whilst the Supreme Court considered that paragraph 49 of the NPPF should have a narrow meaning, in the absence of a five-year housing land supply, it has a wider effect in the planning balance set by paragraph 14. In practice, therefore, whilst restrictive development policies such as those relating to the environment and amenity remain relevant, if there is no five year supply of housing available, the weight to be given to them should be judged against the need for development within the area, which remains the preserve of planning judgement. The justices were keen to stress that the 'rigid enforcement' of such policies often frustrates national housing objectives.

The Supreme Court decision marginalises the issue of whether policies are 'policies for the supply of housing' and will hopefully mark a move away from a legalistic approach to one that puts the planning balance centre stage. However, if, having applied the tilted balance, local planning authorities decide against granting planning permission, we may see a proliferation of appeals by developers in search of a different outcome from the Secretary of State.