The NPPF heads to the Supreme Court

The case of Suffolk Coastal District Council v Hopkins Homes will take the National Planning Policy Framework before the Supreme Court for the very first time. Trevor Ivory and Jim McAvan look at what is at stake.

Looking back at the Court of Appeal decision

As previously reported in Local Government Lawyer (on 18 April 2016) this case involves Suffolk Coastal and Cheshire East Councils and a conjoined appeal over the meaning of the phrase ‘relevant policies for the supply of housing’ as found in the National Planning Policy Framework (NPPF). The residential developers were Hopkins Homes and Richborough Estates. The Court of Appeal in its judgment ([2016] EWCA Civ 168) dismissed the councils' arguments, ruling that paragraph 49 of the NPPF should be interpreted widely and that it applies to all policies that are restrictive of where housing development can go.

The 'golden thread' of the NPPF is a presumption in favour of sustainable development (paragraph 14). This presumption in favour of sustainable development has a number of facets, but the key element in relation to these proceedings is the part that requires decision makers to, "grant permission unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPS taken as a whole." This applies where the development plan is, "absent, silent or out-of-date" and where specific policies of the NPPF do not indicate that development should be restricted (e.g. Green Belt).

In order to boost significantly the supply of housing, paragraph 47 of the NPPF requires all LPAs to seek to meet their objectively assessed housing needs and to identify and demonstrate five years' supply of housing against that need (5YS).

At the heart of the challenge is paragraph 49 of the NPPF, which states that, "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." This controversial paragraph is significant because, in the absence of a 5YS, the part of paragraph 14 referred to above is triggered, with even very new development plan policies being deemed to be out-of-date.

That this is the effect of paragraph 49 has been established in a number of cases but what has remained uncertain is what constitutes a "relevant policy for the supply of housing."

During the Court of Appeal hearing three possible interpretations of the phrase were identified; wide, narrow and intermediate. The Court accepted the wide interpretation, which was the one argued for by the Secretary of State, Hopkins Homes and Richborough Estates. In the words of Lindblom LJ, who delivered the unanimous decision of the Court, the phrase includes any policy, “whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed.” (Paragraph 33 of the judgement). This includes, for example, policies protecting the Green Belt, Areas of Outstanding Natural Beauty, protected wildlife and heritage assets.

The narrow interpretation, advocated by the councils, would only include those policies whose subject matter is housing, including the identification of key sites that are critical to the delivery of the housing strategy over the plan period. The intermediate approach, which was relied on by the councils in the alternative in the Court of Appeal, includes restrictive policies of a general nature that impact upon housing, but not policies designed to protect specific areas or features such as strategic gap or green wedge policies.

Why it matters to local planning authorities

Many local authorities (including Suffolk Coastal and Cheshire East) are struggling to deliver sufficient housing to be able to demonstrate a 5YS and for them, the result of the Court of Appeal's judgment is a continuing vulnerability to what they perceive to be opportunistic and unwelcome speculative planning applications. As Cheshire East's Cabinet Member for Housing and Planning put it in this publication on 18 April 2016, “developers will be able to ride roughshod over locally-decided development policies."

The Supreme Court challenge

The Supreme Court case will not be a direct re-run of the earlier hearings. Essentially, it is the judgment of the Court of Appeal that is now on trial.

At the heart of the councils' appeal is the meaning of one little word - for. The councils are claiming that the Court of Appeal was wrong to adopt a meaning of the word that meant that the phrase in paragraph 49, "Relevant policies for the supply of housing should not be considered up-to-date..." should be read as, "Relevant policies affecting the supply of housing…"

They argue that the meaning of the word 'for' should properly be interpreted as 'in respect of' on the basis that it is the subject matter of the policies that is being referred to, not the effect.

In the councils' submissions, they argue that the Court of Appeal failed to identify and appreciate the proper context of the NPPF, placing too great an emphasis on the fact that the paragraph sits within the housing chapter of the NPPF, which begins (in paragraph 47) with a call to, "boost significantly the supply of housing." In so doing, the councils argue that the Court underplayed the importance of the environmental limb of sustainability promoted in other parts of the NPPF.

The councils also argue that the wider interpretation of paragraph 49 is incorrect and that either the narrow or the intermediate interpretation is to be preferred. They also contend that the effect of the wider interpretation is to undermine the statutory authority of the development plan that is enshrined in section 38(6) of the Planning and Compulsory Purchase Act 2004. That section requires planning applications to be determined in accordance with the development plan unless material considerations indicate otherwise.

The Secretary of State, Hopkins Homes and Richborough Estates have argued throughout the case, that the NPPF is not at odds with the statutory presumption in favour of the development plan. They highlight paragraph 43 of Lindblom LJ's judgement:

"When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted."

Lindblom LJ continued in paragraphs 45, "Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is “out-of-date” should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect."

The heritage angle

While it is the interpretation of paragraph 49 of the NPPF that is attracting all of the headlines, the Suffolk Coastal challenge also offers Their Lordships their first opportunity to consider how the heritage policies contained in the NPPF operate. The Court of Appeal agreed with Hopkins Homes that the appeal inspector had failed to properly carry out an assessment of the significance of a locally-listed park and garden (a non-designated heritage asset in the terminology of the NPPF) as required by paragraph 135 of the NPPF. The Court of Appeal had agreed with Hopkins Homes that failing to undertake that step was itself sufficient to justify the quashing of the inspector's decision to refuse the appeal on the basis of heritage impact.

The Supreme Court hearing is set for 22 and 23 of February 2017.

Trevor Ivory is a partner and Jim McAvan is an associate in the Real Estate group at DLA Piper. Trevor can be contacted on 0121 262 5821 or This email address is being protected from spambots. You need JavaScript enabled to view it..