Common sense from the Supreme Court?

Has the Supreme Court brought an element of common sense to the question of 5 year supply, housing policy and the interpretation of how this affects the Development Plan?

Para. 49: “…relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”.

A judgement issued today by the Supreme Court has dismissed appeals by Suffolk Coastal District and Cheshire East Borough Councils’ appeals against ruling from March 2016.  The ruling considered how paragraph 49 of the NPPF should be interpreted when a Council cannot demonstrate a 5 year supply.  Previously, the Court of Appeal said that without a 5 year supply all policies in the Plan could be up for grabs.  If true, para 49 apparently suggested that policies relating to countryside protection, green belt and AONB’s could all be out of date.

Lord Carnwath

Today, the Supreme Court said that was an inappropriate and unnecessary’ approach. Planning barristers may be staring at their shoes as their finely detailed ‘legalistic’ interpretation of paragraph 49 was criticised by Lord Carnwath.

“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”

Essentially, the Supreme Court appears to be saying that we should worry less about which policies may or may not be ‘out of date’. Put simply, a 5 year shortfall triggers the balance in favour contained within paragraph 14 of the NPPF. Unless adverse impacts suggest otherwise, a sustainable housing scheme should be approved.

Reactions to the judgement seem to depend on which side of the cases at the Court you sat.

Jonathan Clay of Cornerstone acted for Suffolk Coastal DC called this a welcome decision.  He went on to state that it showed the primacy of the Development Plan.

”……it asserts in the clearest terms the primacy of the development plan and the policies of the local plan through which local people can shape and protect their own environment while accommodating the development they need.”

In contrast, Simon Ricketts at Town Legal acted for Richborough Estates in Cheshire.  He said:

“This is the highest court in the land telling us to be less legalistic about the way we frame our arguments as to the application of national and local policies to development proposals. The exercise is not so much a close technical examination as to whether policies are “relevant policies” for the purposes of paragraph 49 but a weighing up of the consequences of a housing supply deficit against policies which are restricting that supply…”

Overall, it would seem sensible to assume that this will lead to more houses on unplanned sites where a shortfall exists.  Jay Das of law firm Wedlake Bell states:

“The question of whether policies are policies for the supply of housing is therefore of marginal relevance. The ruling may in itself be sufficient to allow many more permissions to be granted where councils cannot demonstrate a five-year land supply for housing.”

We will see how this ruling will now start to impact upon green belt or other countryside protection policies.  The Court did seem to reinforce the primacy of the Development Plan. However, following the election it will be interesting to see how the Government fall when so many commentators wonder how targets can be met.

Many thanks to Planning Resource for the speed of their reporting on this very important landmark case.

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