Suffolk Coastal District Council v Hopkins Homes Limited Respondent & Secretary of State for Communities and Local Government and Richborough Estates Partnership LLP v Cheshire East Borough Council & Secretary of State for Communities and Local Government  EWCA Civ 168.
Yet another para 49 what does ity mean case – the third case in recent months where the Courts have had to rewrite completely to make any sense of it.
- Each of the advocates appearing in these appeals has drawn from the first instance case law either two or three distinctly different possible interpretations of the policy, which have been referred to in argument as the “narrow”, the “wider” or “comprehensive”, and the “intermediate” or “compromise”. In the “narrow” interpretation, the meaning given to the expression “[relevant] policies for the supply of housing” is limited to policies dealing only with the numbers and distribution of new housing, and excludes any other policies of the development plan dealing generally with the disposition or restriction of new development in the authority’s area. The “wider” or “comprehensive” interpretation includes both policies providing positively for the supply of new housing and other policies, to which Ouseley J. referred in Barwood Land (in paragraph 47 of his judgment) as “counterpart” policies whose effect is to restrain the supply by restricting housing development in certain parts of the authority’s area. In the so-called “intermediate” or “compromise” interpretation, some restrictive policies will qualify as “[relevant] policies for the supply of housing” but others will not. The latter category is said to comprise, as Ouseley J. described them in Barwood Land, “policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation, all of which could sensibly exist regardless of the distribution and location of housing or other development” (paragraph 47)….
- It is not our task to reconcile – if we could – the several judgments at first instance in which the meaning of this policy has been considered. Nor is it our task to select one of the interpretations given to the policy in those cases, in preference to the others. What we must do is interpret the policy correctly – regardless of whether the interpretation we find to be right has already emerged in one or more of the cases to which we have referred.
- The “narrow” interpretation of the policy, in which the words “[relevant] policies for the supply of housing” are construed as meaning “[relevant] policies providing for the amount and distribution of new housing development and the allocation of sites for such development”, or something like that, is in our view plainly wrong. It is both unrealistic and inconsistent with the context in which the policy takes its place. It ignores the fact that in every development plan there will be policies that complement or support each other. Some will promote development of one type or another in a particular location, or by allocating sites for particular land uses, including the development of housing. Others will reinforce the policies of promotion or the site allocations by restricting development in parts of the plan area, either in a general way – for example, by preventing development in the countryside or outside defined settlement boundaries – or with a more specific planning purpose – such as protecting the character of the landscape or maintaining the separation between settlements.
- Restrictive policies, whether broadly framed or designed for some more specific purpose, may – we stress “may” – have the effect of constraining the supply of housing land. If they do have that effect, they may – again, we emphasize “may” – act against the Government’s policy of boosting significantly the supply of housing land. If a local planning authority is unable to demonstrate the requisite five-year supply of housing land, both the policies of its local plan that identify sites for housing development and policies restrictive of such development are liable to be regarded as not “up-to-date” under paragraph 49 of the NPPF – and “out-of-date” under paragraph 14. Otherwise, government policy for the delivery of housing might be undermined by decisions in which development plan policies that impede a five-year supply of housing land are treated as “up-to-date”.
- We cannot see any logical basis for distinguishing here between restrictive policies of a general nature and those with a more specific purpose. It was this suggested distinction between restrictive policies of one sort and restrictive policies of another that generated the “intermediate” or “compromise” construction of the policy in paragraph 49. Mr Clay and Mr Crean submitted that this construction of the policy finds support in paragraph 47 of Ouseley J.’s judgment in Barwood Land. In that paragraph of his judgment Ouseley J. contrasted two kinds of development plan policy: first, “policies for the provision of housing” and “counterpart” restrictive policies that “may be generally applicable to all or most forms of development”, and secondly, “policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation”, which “could sensibly exist regardless of the distribution and location of housing development”. He considered policy EV2 of the South Northamptonshire Local Plan, which says “planning permission will not be granted for development in the open countryside”, as a policy of the first kind. He did not, however, refer to the distinction between these two kinds of policy as if it divided policies that truly are “for the supply of housing” from policies that are not.
- To infer that from what Ouseley J. actually said is, we think, to misunderstand what he meant. In our view he was simply acknowledging the distinction between restrictive policies of a general nature – such as policy EV2 – and restrictive policies whose purpose is more specific. That, of course, is a perfectly valid distinction. It may be relevant to the application of the policy in paragraph 49 of the NPPF, and the weight given to a particular policy of the development plan in the planning balance. It is not, however, a test of whether a particular policy is or is not a policy “for the supply of housing”. And we do not believe that Ouseley J. was seeking to suggest that it was. As he went on to say in paragraph 48 of his judgment, “… once the Inspector has properly directed himself as to the scope of paragraph 49 [of the] NPPF … , the question of whether a particular policy falls within its scope, is very much a matter for his planning judgment”. That statement is, in our view, correct – and we shall come back to it when we consider how the policy in paragraph 49 is to be applied.
- We therefore reject the “intermediate” or “compromise” interpretation of paragraph 49. Like the “narrow” interpretation, it fails to recognize that it is the effect of certain policies – whether general or specific – in restricting housing development and preventing an authority from demonstrating a “five-year supply of deliverable housing sites” that brings them within the scope of the policy in paragraph 49.
- As we have said (in paragraph 23 above), we have not set out to reconcile the several first instance judgments in which the meaning of the policy in paragraph 49 has been considered before. In fact, that would not be possible. We ought to say, however, that those cases in which the court has rejected the “wider” interpretation of the policy have not in our view been correctly decided on that particular point. Of the cases cited to us (see paragraph 20), this may be said of the decision in William Davis, where the judge concluded that a policy restricting development in a “Green Wedge” (policy E20 of the North-West Leicestershire Local Plan, adopted in 2002) was not a relevant policy for the supply of housing within paragraph 49, despite the fact that it prevented housing development on the appeal site (see paragraph 47 of the judgment). We should add, however, that the judge did not have the benefit of all the submissions we have heard on this point, or of the later decisions in which it has been considered. In Wenman the judge appears to have accepted that two policies of a local plan dealing respectively with the “Environmental Implications of Development” and “Design and Layout” (policies D1 and D4 of the Waverley Borough Local Plan 2002) were not policies for the supply of housing, because they were not “general” restrictions on development and fell within the second kind of restrictive policy referred to by Ouseley J. in paragraph 48 of his judgment in Barwood Land (see paragraphs 57 to 59 of the judgment). But that distinction between two kinds of policy restrictive of housing development is not a dividing line between policies that are “for the supply of housing” and those that are not (see paragraphs 36 to 38 above). Again, however, we would add that the judge did not have the advantage of the argument we have heard. It also seems to us that the erroneous interpretation of the policy in paragraph 49 of the NPPF made no difference to the outcome of the proceedings because the two local plan policies in question were not, in fact, restrictive of housing development in either of the two respects identified by Ouseley J. inBarwood Land.
How is the policy in paragraph 49 of the NPPF to be applied?
- The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory “presumption in favour of the development plan”, as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland  1 W.L.R. 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the “presumption in favour of sustainable development”, do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework – as the NPPF itself acknowledges, for example, in paragraph 12 (see paragraph 12 above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense.
- When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.
- The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be (see, for example, the judgment of Lindblom J. in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government  EWHC 754 (Admin), at paragraphs 101 to 135).
- Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, as Ouseley J. said in paragraph 48 of his judgment in Barwood Land, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.
- We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment  1 W.L.R. 759, at p.780F-H). Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is “out-of-date” should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.
- One may, of course, infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out-of-date policies for the supply of housing will normally be less than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a “green wedge” or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment (see paragraphs 70 to 75 of Lindblom J.’s judgment inCrane, paragraphs 71 and 74 of Lindblom J.’s judgment in Phides, and paragraphs 87, 105, 108 and 115 of Holgate J.’s judgment in Woodcock Holdings Ltd. v Secretary of State for Communities and Local Government and Mid-Sussex District Council  EWHC 1173 (Admin)).
- The policies in paragraphs 14, 47 and 49 of the NPPF are not, as we understand them, intended to punish a local planning authority when it fails to demonstrate the requisite five-year supply of housing land. They are, however, clearly meant to be an incentive. As Sir David Keene said in paragraph 31 of his judgment in Hunston:
“… Planning decisions are ones to be arrived at in the public interest, balancing all the relevant factors and are not to be used as some form of sanction on local councils. It is the community which may suffer from a bad decision, not just the local council or its officers.”