Paragraph 49 NPPF and five year housing land supply – the Supreme Court decides

Will Thomas, Browne Jacobson

The Supreme Court’s recent decision to grant permission to Suffolk Coastal District Council and Cheshire East Council to appeal the decision of the Court of Appeal in the case of Suffolk Coastal D.C. v Hopkins Homes and Richborough Estates Partnership LLP v Cheshire East Borough Council [2016] EWCA Civ 168 re-opens the debate over the meaning of “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (NPPF).

Paragraph 49 NPPF states: “Housing applications should be considered in the context of the presumption in favour of sustainable development. 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.”

Therefore, where a local planning authority cannot demonstrate a five-year land supply (which can quite often be the case); the exact meaning of “relevant policies for the supply of housing” is crucial when determining applications for development. A wide meaning will invariably restrict the extent to which local planning authorities may rely on settlement boundary policies, for example, to restrict development in rural locations.

In the case of Richborough Estates Partnership LLP the court held that in respect of the Council’s Green Gap (Policy NE4), whilst having a wider purpose in maintaining gaps between settlements, its extent was derived from settlement boundaries and Policy NE4 was, in effect, a policy for the supply of housing. Paragraph 49 was to be interpreted widely, when read in the context of the government’s ambition to boost significantly the supply of housing. Paragraph 49 did not, the court held, apply solely to policies relating to the amount and distribution of housing.

The Court of Appeal ruling left the appellant local authorities poised to launch a further appeal to the Supreme Court in a bid to protect planning powers and prevent developers ‘riding roughshod’ over councils’ development policies (Cheshire East press release). That application for permission to appeal was granted last month.

In granting permission to appeal, the Supreme Court recognised that the application raised a point of law of general public importance. This will be the first time the Supreme Court considers the NPPF and will no doubt put to rest the meaning of “relevant policies for the supply of housing” in paragraph 49.

Pending the outcome of the Supreme Court hearing, local planning authorities should ensure that decisions under paragraph 49 are made in light of the wider interpretation espoused in Hopkins Homes and Richborough Estates.