NPPF 77 and housing land supply

Josef Cannon KC and Ryan Kohli consider an important High Court case concerning paragraph 77 of the National Planning Policy Framework and housing land supply.

Faced with an unusual situation in Cherwell, a planning Inspector had to decide how to identify the housing requirement against which housing land supply was to be assessed. Cherwell’s housing need figures are set out in two Development Plan documents: the Cherwell Local Plan 2015 and the 2020 Partial Review of the local plan (“PR Plan”).

As the figures in the 2015 local plan were more than 5 years old and the figures in the PR Plan less than five years old, paragraph 77 of the pre-December 2024 NPPF (“NPPF 77”) does not expressly guide decision makers on how to identify the overall housing requirement for the Borough. The position remains largely analogous in what is now paragraph 78 of the December 2024 NPPF.

Following a statutory challenge brought against the Inspector’s approach, the Judge, Lieven J, accepted in Dorchester Living Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 3223 (Admin) submissions advanced on behalf of the Secretary of State that the Inspector had to exercise planning judgment as to how to apply NPPF 77 to a situation which was not precisely covered by national policy. The Inspector aggregated the local housing need (“LHN”) figure for Cherwell with the PR Plan need figure to arrive at a single overall housing requirement figure for Cherwell, against which she measured forward supply. Her approach was supported by paragraph 67 of the NPPF which specifically envisages that housing requirement figures in a plan-making context may be higher than identified need, where they take into account a neighbouring area’s need.

The Judge held that there was nothing within NPPF 77 which forces decision makers into a binary choice in the situation with which the Inspector was presented. If the sensible solution, on the facts of a particular case, is to take LHN where one set of strategic polices are out of date, and the development plan policies where they are up to date, and aggregate the two, then there is no reason why decision makers cannot do that. It is likely that this situation is not limited to Cherwell, and is a further reminder that national policy is not drafted to cover every conceivable factual situation. Where it does not cover a scenario, planning judgment provides the answer.

Josef Cannon KC and Ryan Kohli are barristers at Cornerstone Barristers. They were instructed in this matter by the Government Legal Department.