It appears that we finally have a defined position on how Para’s 14 and 49 respectively of the NPPF should be used with regards to housing facility following the handing down of judgment of the joined appeals for Suffolk Coastal District Council v Hopkins Homes Ltd UKSC 2016/0076 and Richborough Estates Partnerships LLP v Cheshire East Borough Council UKSC 2016/0078.
Having read the full judgment at the end of last week, I am relieved that the outcome takes ambiguity off the table with how Para 49 should be used and defined in relation, specifically, to planning arguments relating to five-year housing supply. Lord Carnwarth makes clear that the wording associated with “policies for the supply of housing” in Para 49, and the catchment of policies that can be defined as affecting housing in relation to it, is essentially an irrelevance. Either there is or is not a shortfall, and if there is it is enough to trigger the second part of Para 14 without the need to define which policies are or are not out of date.
Whilst this approach makes clear that non-housing policy (policy that does not have a relationship with the predominant concerns of Para 47, the scene-setting paragraph for how 49 should be interpreted) which has the effect of restricting housing supply, such as Green Belt or AONB policies, should NOT be deemed out of date by Para 49, it nevertheless has to be weighed properly as a material consideration in titled balance against the weight given to the provision of housing.
It is therefore for the decision maker to prove that the impact on restricted designation land, such as Green Belt, will significantly and demonstrably outweigh the benefits of the proposal (Lord Gill surmises this particularly well at para.85 of the judgment).
Initially in the development world, there may be some heavy hearts that the wider policy interpretation of Para 49, as defined by Lindblom LJ has not been retained; however in reality there was clear resistance to this approach in subsequent decision making by local authorities. The Supreme Court judgment makes a clear requirement for decision makers to assess all restrictive policies in weighted balanced against the weight attributed to a contribution to housing supply in Para 14 terms.
It is the lack of attention paid by decision makers to the weighted balance exercise (hiding behind an inflexible and incorrect consideration of Green Belt and landscape policies in particular) that has bottlenecked the delivery of greenfield housing development; this decision provides a clear mandate to authorities, do the balancing exercise or face the consequences at appeal.
MRICS BSc (Hons) RICS Accredited Expert Witness
NextPhase Development Ltd.