The Suffolk Coastal case and LPAs

Planning iStock 000002733689Small 146x219Hereward Phillpot QC [1] considers the implications for local planning authorities from the Supreme Court’s judgment in the Suffolk Coastal District Council case.

Introduction

The Supreme Court’s Judgment in the case of Suffolk Coastal District Council v. (1) Hopkins Homes (2) Secretary of State for Communities and Local Government and Cheshire East Borough Council v. (1) Richborough Estates Partnership LLP (2) Secretary of State for Communities and Local Government [2017] UKSC 37 was handed down on 10 May 2017, and has important implications for local planning authorities in dealing with applications and appeals concerning housing development.

The case arose out of a dispute as to the meaning of the phrase “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (“NPPF”), but the outcome has changed the approach to the application of paragraphs 49 and 14, and footnote 9. The Judgment also contains important points about the scope for claimants to bring challenges on the basis of misinterpretation of planning policy, and about the approach to development plan policies for the protection of heritage assets.

The approach to paragraphs 49 and 14 of the NPPF

The disputed words and their significance

Paragraph 49 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”

The meaning of paragraph 49 of the NPPF had been considered by the Planning Court many times, with various (and inconsistent) results [2]. It has been heavily disputed and frequently litigated because until now the working assumption has been that the effect of deeming a policy as out-of-date pursuant to paragraph 49 would normally mean that it would be given less weight in the planning balance [3]. Hence local planning authorities had argued for a ‘narrow’ interpretation which limited its application to those development plan policies that dealt only with the numbers and distribution of new housing. Housing developers [4] had argued for a ‘wider’ interpretation that also included what were referred to as ‘counterpart’ policies whose effect is to restrain the supply by restricting development in certain parts of the authority’s area.

It was not in dispute that if there was no five-year housing land supply, the effect of paragraph 49 was to trigger the application of the ‘tilted balance’ test in paragraph 14 [5] – and that was the position on either the ‘narrow’ or ‘wider’ application.

The Court of Appeal’s approach

The Court of Appeal came down clearly in favour of the ‘wider’ interpretation, finding that this was both the literal interpretation of the words used, and the “only interpretation consistent with the obvious purpose of the policy when read in its context" [6]. It rejected the ‘narrow’ interpretation as “plainly wrong”, finding that it was “both unrealistic and inconsistent with the context in which the policy takes its place" [7].

It is important to understand the practical concern that led the Court of Appeal to this conclusion. If the positive housing allocation policies were treated as being out-of-date, but restrictive ‘counterpart’ policies were not:

“… 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”" [8].

The two local authorities appealed to the Supreme Court.

The Supreme Court’s approach

The Supreme Court rejected the appeals, even though its own view as to the meaning of the disputed words:

“… may be regarded as adopting the “narrow” interpretation, contrary to the conclusion of the Court of Appeal" [9].

That was because the Supreme Court took the view that, properly understood, the dispute as to the breadth or otherwise of the disputed words was not the “real issue”, which was “what follows from that" [10]. In short, the difference between the ‘narrow’ and ‘wider’ interpretations had no specific consequences for the weight that attached to relevant development plan policies in the absence of a five-year housing land supply. It was simply a trigger for the application of paragraph 14 of the NPPF [11].

The weight to attach to relevant development plan policies (whether these are housing supply policies or restrictive ‘counterpart’ policies) falls to be considered when applying paragraph 14 of the NPPF as an ‘other material consideration’ in the section 38(6) balance. It is at that stage that “the wider view of the development plan policies has to be taken" [12].

When local planning authorities are undertaking that weighing exercise, it is important that they pay close attention to Lord Gill’s comments [13] “on the approach that should be taken in the application of the [NPPF] in planning applications for housing development" [14]. The following points are to be noted:

  • There is an emphasis on the NPPF’s clear objective of boosting the supply of housing and deliverability [15].
  • Local planning authorities are warned of the futility of relying on undeliverable allocations for housing development [16].
  • Rigid enforcement of restrictive development plan policies (including footnote 9 policies) is discouraged so as not to frustrate the clear housing objective in the NPPF [17].
  • If relevant policies for the supply of housing are not to be considered as being up to date, they retain their statutory force, but the focus shifts to other material considerations [18].

The practical implications

The Supreme Court’s approach seems likely to mean a different route to the same ultimate destination. Whether the Court of Appeal’s or the Supreme Court’s approach is adopted, the net result is that in the absence of a five-year housing land supply paragraph 14 of the NPPF is engaged and one would normally expect less weight to be given to conflict with restrictive development plan policies that are impeding the achievement of the housing objectives in the NPPF. This is illustrated by the outcome of the two appeals, both of which were dismissed notwithstanding the Supreme Court’s different interpretation of the disputed words.

The significant advantage of the Supreme Court’s approach, however, is that it makes this part of the decision-making process far simpler for local planning authorities, planning inspectors and the Secretary of State. It is still necessary to decide whether there are any relevant policies for the supply of housing [19], but only as a trigger for the application of the ‘tilted balance’ test in paragraph 14 of the NPPF. Importantly, it circumvents the need for debate about the classification of individual policies, because that is no longer a consequential matter. The weight that is attached to relevant development plan policies remains a matter for the decision-maker [20], but local authorities will of course need to keep in mind the availability of a right of appeal for refusal of planning permission and the consequences of adopting an unreasonable approach.

Footnote 9 to paragraph 14 of the NPPF

Footnote 9 to paragraph 14 provides for an exception to the application of the ‘tilted balance’ test. The Supreme Court held that although paragraph 14:

“… refers in terms only to policies in the [NPPF] itself, it is clear … that the list is to be read as including the related development plan policies" [21] .

That is perhaps not the most natural interpretation of the words used, but nevertheless that is the approach that must now be followed. The implications are potentially far-reaching, because the list of policies in footnote 9 is not exhaustive, and a relatively wide interpretation has so far been adopted by the Planning Court [22]. Scope therefore exists for more disputes to arise as to whether the exception applies in individual cases by reference to policies in the development plan as well as the NPPF. However, the window of opportunity for such disputes may be limited, given the Government’s stated intention to amend footnote 9 to provide an exhaustive list [23].

Administrative Court challenges based on alleged misinterpretation of policy

Whilst the Supreme Court’s findings as to the interpretation of and approach to particular phrases in current national planning policy will only be of practical importance whilst that policy persists, there are other aspects of the Judgment that seem likely to have longer lasting implications. Perhaps the most important is what was said about challenges to planning decisions based on an alleged misunderstanding of relevant policy.

As the Supreme Court noted at paragraph 23 of the Judgment:

“… some concerns were expressed by the experienced counsel before us about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself … Some further comment from this court may therefore be appropriate.”

The comments that follow appear designed to rein-in the tendency to “over-legalisation” following the decision in Tesco Stores Ltd. v. Dundee City Council [2012] UKSC 13, which had held that the proper interpretation of planning policy was a matter of law.

  • It was important not to overstate the role of the court, and to consider what was said in the Tesco case in the context of the relatively specific policy there under consideration [24].
  • These are statements of policy not statutory texts, and must be read in that light [25].
  • Even where there are disputes over interpretation, they may not be determinative of the outcome [26].
  • Claimants should distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two [27].
  • Planning Inspectors have primary responsibility for resolving disputes over the practical application of policies. Their position is analogous to that of expert tribunals, where the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence. The courts should respect the expertise of the specialist inspectors and start at least from the presumption that they have understood the policy framework correctly [28].

Heritage: development plan policies and paragraph 135 of the NPPF

A discrete issue arose in one of the conjoined appeals as to the approach to be taken to the balanced judgment called for by paragraph 135 of the NPPF when considering the effect of a proposed development on the significance of a non-designated heritage asset.

It was held that this was not a separate balance from that required under section 38(6) having regard to the development plan and all other material considerations [29]. The Inspector was right to consider local plan policy against NPPF paragraph 215 and to give it reduced weight as it was not consistent with paragraph 135 due to the absence of a provision calling for a balanced judgment. However, the policy was not to be set aside in favour of the NPPF [30].

The Supreme Court did not expressly deal with a specific concern of the Court of Appeal, which was that the Inspector had missed out an essential step in his reasoning because he had failed to identify what the significance of the particular asset was [31]. In the light of what paragraph 135 says, and the views expressed by the Court of Appeal, decision-makers dealing with a proposal that has an impact on a heritage asset should continue to take care to identify its significance before considering the nature and extent of any impact upon it.

Conclusions

The Supreme Court’s decision is important, and brings much needed clarity and simplification to what had become a highly contentious issue in both planning appeals and in the Administrative Court.

The approach that has been adopted takes a different route to arrive at what is effectively the same practical outcome. It is nevertheless essential that local planning authorities ensure that their own approach to NPPF paragraphs 49 and 14 and footnote 9 in their decision-making (and their evidence in appeals) is consistent with that now laid down by the Supreme Court.


[1] Hereward Phillpot QC is a barrister at Francis Taylor Building. He appeared on behalf of the Secretary of State for Communities and Local Government in the Court of Appeal and Supreme Court, together with Richard Honey. The views expressed in this article are those of the author, and do not purport to represent the views of the Secretary of State.

[2] See e.g. William Davis Ltd. v. SSCLG [2013] EWHC 3058 (Admin); Cotswold DC v. SSCLG [2013] EWHC 3719 (Admin); South Northamptonshire Council v. SSCLG [2013] EWHC 4377 (Admin); South Northamptonshire Council v. SSCLG [2014] EWHC 573 (Admin); Crane v. SSCLG [2015] EWHC 425 (Admin); Phides Estates (Overseas) Ltd. v. SSCLG [2015] EWHC 827 (Admin) and Wenman v. SSCLG [2015] EWHC 925 (Admin).

[3] See e.g. what was said by the Court of Appeal [2016] EWCA Civ 168 at paragraph 47

[4] Supported in this case by the Secretary of State.

[5] The presumption in favour of sustainable development, whereby if the development plan is absent, silent or relevant policies are out-of-date, planning permission should be granted unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole; or specific policies in the NPPF indicate development should be restricted. Footnote 9 gives examples of such ‘specific policies’.

[6] [2016] EWCA Civ 168 at paragraph 32

[7] Op. Cit. at paragraph 34

[8] Op. Cit. at paragraph 35

[9] [2017] UKSC at paragraph 59

[10] Paragraph 82

[11] Paragraph 59

[12] Paragraph 84

[13] With which Lords Neuberger, Clarke and Hodge agreed (albeit not Lord Carnwath – the Judgment does not reveal why).

[14] Paragraph 70

[15] Paragraphs 76-78

[16] Paragraph 78

[17] Paragraphs 79 and 83

[18] Paragraph 84

[19] There will almost always be at least some such policies, unless the development plan is absent or out-of-date because it has passed its expiry date and none of those policies have been saved.

[20] Subject to considering all of the surrounding circumstances, see e.g. what the Court of Appeal said in paragraph 47 of its Judgment, and per Holgate J in Woodcock Holdings v. SSCLG [2015] EWHC 1173 (Admin) at paragraph 105 and 108.

[21] Paragraph 14, and see also per Lord Gill at paragraph 85.

[22] See Forest of Dean DC v. SSCLG [2016] EWHC 421 (Admin); [2016] PTSR 1031 and note that the Court of Appeal considered but declined to determine this issue in R (Watermead PC) v. Aylesbury Vale DC [2017] EWCA Civ 152 (because it was not necessary on the facts, and the court would first wish to hear submissions on behalf of the Secretary of State).

[23] White Paper “Fixing our broken housing market” (Cm 9352).

[24] Paragraph 24

[25] Paragraph 25

[26] Paragraph 25

[27 Paragraph 26, and see also what was said by Holgate J on this issue in Trustees of the Barker Mill Estates v. SSCLG[2016] EWHC 3028 (Admin) at paragraphs 22, 83-84, 92 and 141.

[28] Paragraph 25

[29] Paragraph 68

[30] Paragraph 67

[31] See paragraph 65 of the Court of Appeal’s Judgment.