Supreme Court: The Richborough/ Suffolk Coastal Judgment 

What the case means for the development industry?
Chris Young, No5 Barristers’ Chambers

The key message for the development industry is that settlement boundary policies can be given reduced weight if they are based on out-of-date housing requirements.

Richborough Estates have won their case in the Supreme Court. This means they can implement their planning permission for 146 houses in the Green Gap between Willaston and Crewe. The Council opposed the scheme on the basis that the site lay outside the settlement boundary for Willaston and within the protected Green Gap protecting land between Willaston and Crewe.

The Supreme Court have made clear that the Courts should not set about defined “policies for the supply of housing”. It is enough simply for an applicant or appellant to show that there is no five year supply of housing land. Once that is done, it provides an automatic answer to the question of whether “relevant policies are out-of-date” such that the titled balance applies, subject only to the last line of the NPPF/14.

Lord Carnwath made clear that he did not think there was a need for any legal interpretation “policies for the supply of housing”. The Court took the view that it simply means policies dealing only with the numbers and distribution of new housing. This is the so-called “narrow interpretation” which excludes from the remit of NPPF/49 policies such as settlement boundary policies.

The Court held:

“The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.” (Judgment, paragraph  59)

On the operation of NPPF/14 Lord Carnwath held:

In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are “significantly and demonstrably” outweighed by the adverse effects, or where “specific policies” indicate otherwise. (See also the helpful discussion by Lindblom J in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), paras 42ff)” (Judgment, paragraph 54)

As to the weight to give policies in the Development Plan, the Court confirmed this is always a matter of planning judgement for the decision maker:

“As the Court of Appeal recognised, that will remain a matter of planning judgement for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the “tilted balance”. (Judgment para 56)

Despite adopting the narrow interpretation to the phrase “relevant policies for the supply of housing”, the Court concluded that the Inspector in the Richborough appeal would have come to the same conclusion and granted planning permission. The reason for this view is important and is set out in paragraph 63 of the Judgment. Lord Carnwath made clear the narrow interpretation,

“did not detract materially from the force of his [the Inspector’s] reasoning. He was clearly entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflect out-of-date housing requirements” (para 94). He recognised that policy NE.4 had a more specific purpose in maintaining the gap between settlements, but he considered that the proposal would not cause significant harm in this context (para 95). His final conclusion (para 101) reflected the language of paragraph 14 (the tilted balance). There is no reason to question the validity of the permission.”

In addition to Lord Carnwath, Lord Gill offered these helpful observations:

“These requirements, and the insistence on the provision of “deliverable” sites sufficient to provide the five years’ worth of housing, reflect the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five-year period.” (Judgment Paragraph 78)

“Among the obvious constraints on housing development are development plan policies for the preservation of the greenbelt, and environmental and amenity policies and designations such as those referred to in footnote 9 of paragraph 14. The rigid enforcement of such policies may prevent a planning authority from meeting its requirement to provide a five-years supply.” (Judgment Paragraph 79)

If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated. The purpose of paragraph 49 is to indicate a way in which the lack of a five-years supply of sites can be put right. It is reasonable for the guidance to suggest that in such cases the development plan policies for the supply of housing, however recent they may be, should not be considered as being up date.” (Judgment paragraph 83)

If the 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. That is the point at which the wider view of the development plan policies has to be taken.” (Judgment Paragraph 84)

The message is clear. If a local planning authority is relying on settlement boundaries based on an out-of-date housing requirement, as many are, then the Supreme Court has said that despite these being policies in the adopted development plan, the decision maker is perfectly entitled to reduce the weight to be given to such restrictive policies. That will then be critical to the planning balance and role played by other material consideration, such as the need for more market and affordable housing. And of course, any shortfall in the five year supply of housing land.  

Chris Young
10 May 2017