Does a Landscape Get Out of Date? – Reflections on the Fothcoming Supreme Court Para. 49 decision

The planning world is awaiting with baited breath the outcome of Suffolk Coastal DC v Hopkins Homes; Richborough Estates v Cheshire East BC, on para 49 of NPPF in the Supreme Court next week.

Without going through the byzantine complexity of cases on this point they turn on

Ouseley J.  Barwood Land (in paragraph 47 of his judgment) over two types of policy regarding the interpretation of what is ‘“relevant policies for the supply of housing”

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”

I take the at first glance contradictory position that Ouseley J’s classification of two types of policy is important but that the wider interpretation of Para 49, that it refers to ALL policies impacting on the supply of housing.

Policies directly related to the supply of housing, allocations, housing numbers etc.  can immediately become out of date with demographic shifts and land availability shifts.

However landscape designations date less directly.  A beautiful hill is no less beautiful in these cases.  Planning is about balencing weights and making choices.  Para 49 still applies – and the designation is to a dgree out of date, but this must always be weighted against the intrinsic importance of the asset.

Sadly landscape policies are often policies to restrict supply in disguise.  This is particularly so with village envelopes, town built up boundaries and over large Green Gaps.  Sadly few local plans make the distinction.  If a local plan protects a hill and says this is the absolutely last place you should develop and if there is a need develop it in areas outside this designation this policy is not necessarily out of date or immaterial in the ‘weighted balance’ the decision maker must make.  So we shouldn’t fear the wider interpretation of para, 49.  What we should fear is a restriction on the normal discretion of decision makers on weights or an unlawful binding of decisions makers hands to simply ignore adopted development plan landscape designations.


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