The Supreme Court on the National Planning Policy Framework: reaction

The Supreme Court has handed down its eagerly-anticipated ruling on the meaning of key provisions in the National Planning Policy Framework. Local Government Lawyer rounds up the reactions from some of the lawyers involved.

Read the news story here.

Hereward Phillpot QC and Richard Honey of Francis Taylor Building, who appeared in the appeals for the Secretary of State for Communities and Local Government, instructed by the Government Legal Department

“In terms of how paragraphs 14 and 49 of the NPPF were intended to work, the position set out by the Supreme Court can be summarised as follows.

“If there is not a five-year housing land supply, and if there is a relevant policy for the supply of housing involved, then the 'tilted balance' in the second bullet point in paragraph 14 of the NPPF is applicable (subject to the exception linked to footnote 9), as another material consideration. Then, consideration should be given to what weight to give to all relevant development plan policies (including housing supply policies and restrictive/counterpart policies) in the s38(6) balance in light of the need for housing and there being no five year housing land supply. The weight to be given to development plan policies in the circumstances is a matter of pure planning judgement for the decision-maker in accordance with ordinary principles.

“The judgment also contains interesting comment on the approach of the courts to planning inspectors’ decisions. It was said that the courts should respect the expertise of specialist planning inspectors, and start at least from the presumption that they will have understood policy correctly. This was because the position of planning inspectors is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence.

"The Supreme Court also cautioned against the misapplication of the decision in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, noting that it was necessary to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy, and not to elide the two.”

Jonathan Clay, Cornerstone Barristers, who represented Suffolk Coastal throughout all levels of the 4-year legal battle

“This is a welcome decision not only for the clarity that it brings to a complex and much fought over area of planning law and policy, but also because 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.”

Hugh Richards of No 5, who appeared for the local authorities

“The outcome was something of a ‘split decision’: the councils’ appeals were dismissed so that the Richborough Estates planning permission in Cheshire is preserved and the Hopkins Homes appeal against the Suffolk Coastal refusal will have to be re-determined.

"However, the Supreme Court held that the Court of Appeal’s interpretation of what are 'relevant policies for the supply of housing' was wrong and that those words legally bore the narrow meaning as the two councils had contended. However, in the Richborough appeal the inspector’s error in the paragraph 49 issue had not materially affected the inspector’s consideration of the NPPF paragraph 14 ‘tilted balance’ so there was no reason to question the validity of the permission. The dismissal of the Hopkins Homes appeal was quashed for a reason unrelated to the paragraph 49 issue but which had distorted his approach to the paragraph 14 balance.

"So, it might be said that the councils lost the local ‘battle’ over the outcome of the two appeals, but won the ‘war’ over the nationally important issue of what an important provision of the NPPF means. The Supreme Court also gave some essential guidance as to how paragraph 14 of the NPPF should be applied in decision-taking.”

Trevor Ivory, DLA Piper UK Planning Head, who led the team acting for Hopkins Homes

"The judgement renders paragraph 49 irrelevant. As from today, the critical question is whether a planning authority can demonstrate a five-year land supply. If not, the second limb of paragraph 14 is triggered and the decision-maker will need to have regard to the extent to which particular policies of the development plan are the reason for the underperformance when deciding what weight to give to those policies in the application of the titled balance - regardless of whether they are housing supply policies or not.

"This judgement puts a lot of power in the hands of the decision-maker, who will have a wide discretion on questions such as whether a policy is part of the cause of an under delivery of housing.  Even if the decision-maker concludes that a policy is part of the problem, they will still also have a wide discretion as to the weight to attach to the issue.  Planning by appeal therefore looks set to continue, with developers unhappy about local planning authority refusals looking for a very different weighting from the Secretary of State and his planning inspectors."

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