Tue, 09 May 2017
The Supreme Court has today (10 May 2017) given judgment in the Cheshire East / Suffolk Coastal cases heard in February. The outcome was something of a ‘split decision’: the Councils’ appeals were dismissed so that the Richborough Estates planning permission in Cheshire is preserved and the Hopkins Homes appeal against the Suffolk Coastal refusal will have to be re-determined. However, the Supreme Court held that the Court of Appeal’s interpretation of what are “relevant policies for the supply of housing” was wrong and that those words legally bore the narrow meaning as the two Councils had contended. However, in the Richborough appeal the inspector’s error in the paragraph 49 issue had not materially affected the inspector’s consideration of the NPPF paragraph 14 ‘tilted balance’ so there was no reason to question the validity of the permission. The dismissal of the Hopkins Homes appeal was quashed for a reason unrelated to the paragraph 49 issue but which had distorted his approach to the paragraph 14 balance. So, it might be said that the Councils lost the local ‘battle’ over the outcome of the two appeals, but won the ‘war’ over the nationally important issue of what an important provision of the NPPF means. The Supreme Court also gave some essential guidance as to how paragraph 14 of the NPPF should be applied in decision-taking.
Martin Kingston QC and Hugh Richards of No5 Barristers' Chambers appeared for the local authorities.
Chris Young and James Corbet Burcher of No5 Barristers' Chambers appeared for Richborough Estates LLP.
Lord Carnwath, who gave the leading judgment, identified at the outset [para 2] that while the appeals related to the “narrow issue” of the proper interpretation of paragraph 49 of the NPPF, they also provided the opportunity for the Supreme Court “to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”
To deal with the ‘narrow’ issue first, it will be recalled [49] that the Court of Appeal held that the words “relevant policies for the supply of housing” meant “relevant policies affecting the supply of housing” so that the class of policies which would be deemed to be out-of-date in the absence of a five-year supply of deliverable housing sites was very broad - those policies whose effect was to restrict housing development. These include (the Court of Appeal acknowledged) policies for the protection of the green belt, AONB, heritage, locally designated ‘green gaps’ and the open countryside outside settlement boundaries.
The law on the interpretation of policy in the NPPF was confirmed. The starting point was the approach to the interpretation of the statutory development plan set out in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; 2012 SLT 739 which remains good law. Lord Carnwath reminded practitioners that the NPPF was intended to be a simplification of national policy guidance, designed for the lay reader and that “over-legalisation” would be “unfortunate” [23]. Therefore, he said [24], it should be borne in mind that some policies, especially those expressed in broad terms, may not require nor lend themselves to the same level of legal analysis as had been carried out in respect of the relatively specific policy under consideration in Tesco v Dundee. He said [25] that it must be remembered that statements of policy are just that, not statutory texts, and must be read in that light; the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly; that where recourse to the courts is needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, the specialist judges of the Planning Court have an important role [26].
Lord Carnwath, however, went on [48+] to disagree with the Court of Appeal’s interpretation (in which a specialist planning judge gave the leading judgment) of the key word “for” in paragraph 49:
“[57] The word “for” simply indicates the purpose of the policies in question, so distinguishing them from other familiar categories, such as policies for the supply of employment land, or for the protection of the countryside. I do not see any justification for substituting the word “affecting”, which has a different emphasis. It is true that other groups of policies, positive or restrictive, may interact with the housing policies, and so affect their operation. But that does not make them policies for the supply of housing in the ordinary sense of that expression. ……
[59] This may be regarded as adopting the “narrow” meaning, contrary to the conclusion of the Court of Appeal. ……
[60] The Court of Appeal … was wrong, with respect … to adopt a reading of paragraph 49 which not only changes its language, but in doing so creates a form of non-statutory fiction. On their reading, a non-housing policy which may objectively be entirely up-to-date, in the sense of being recently adopted and in itself consistent with the Framework, may have to be treated as notionally “out-of-date” solely for the purpose of the operation of paragraph 14.
[61] There is nothing in the statute which enables the Secretary of State to create such a fiction, nor to distort what would otherwise be the ordinary consideration of the policies in the statutory development plan; nor is there anything in the NPPF which suggests an intention to do so. Such an approach seems particularly inappropriate as applied to fundamental policies like those in relation to the Green Belt or Areas of Outstanding Natural Beauty. No-one would naturally describe a recently approved Green Belt policy in a local plan as “out of date”, merely because the housing policies in another part of the plan fail to meet the NPPF objectives. Nor does it serve any purpose to do so, given that it is to be brought back into paragraph 14 as a specific policy under footnote 9. It is not “out of date”, but the weight to be given to it alongside other material considerations, within the balance set by paragraph 14, remains a matter for the decision-maker in accordance with ordinary principles. ”
The Supreme Court had earlier [48] identified the narrow meaning as being “policies dealing with the numbers and distribution of new housing, and excluding any other policies of the development plan dealing generally with the disposition or restriction of new development in the authority’s area.”
Turning now to the broader issues. The first is the relationship between the NPPF and the statutory development plan. The Court’s interest in this matter [19] was precipitated by dicta of Laws LJ in R(West Berkshire DC) v SSCLG [2016] EWCA Civ 441; [2016] 1 WLR 3923, para 12) that the Secretary of State’s power to formulate and adopt national planning policy was a common law power conferred by the royal prerogative. After the focus on the royal prerogative in the Article 50 Brexit case [20] this was understandable. The Supreme Court accepted the parties’ common position that the power to issue national policy such as the NPPF was derived, expressly or by implication from the planning Acts which give him overall responsibility for oversight of the planning system.
However, the Court was at pains to point out that the scope of the Secretary of State’s policy-making role was not to be overstated [21]:
“The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than “guidance” and as such a “material consideration” for the purposes of s70(2) of the 1990 Act. … It cannot and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and so as not to displace or distort, the statutory scheme.”
Lord Carnwath was crystal-clear [14]: “Paragraph 14 cannot, and is clearly not intended to, detract from the priority given by statute to the development plan”.
A second broad issue is what it means in practice once a relevant policy has been judged to be out-of-date and the ‘tilted balance’ in paragraph 14 of the NPPF is engaged. Lord Carwath held that [54]:
“The general effect [of paragraph 14] is reasonably clear. 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.”
On the reference to “specific policies” in paragraph 14 and to the examples given in footnote 9 Lord Carnwath said [14] “although the footnote refers in terms only to policies in the Framework itself, it is clear in my view that the list is to be read as including the related development plan policies.”
Lord Carnwath emphasised [55] that paragraph 14 is not concerned solely with housing policy. He gave the example of a relevant policy for employment land that might become out-of-date “perhaps because of the arrival of a major new source of employment in the area” so that “the pressure for new land may mean in turn that other competing policies” – he cited transport policy as an example – “will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgment, not dependent on issues of legal interpretation.” The same approach should apply to housing policies deemed out-of-date under paragraph 49. He said [56]:
“It also shows why it is not necessary to label other policies “out-of-date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgment for the decision-maker. Restrictive policies in the 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”.
But he added [59], that in the context of paragraph 49:
“The important question is not how to define individual policies” (as policies for the supply of housing or for some other purpose) “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.”
Paragraph 14, Lord Carnwath said, does not take away the “ordinary” discretion of the decision-maker to determine what weight should be given to even an “out-of-date” policy. It is not necessary to label a policy out-of-date in order to decide what weight to give to it under paragraph 14 [56]. It does not follow that if a policy is deemed to be out-of-date, or is out-of-date as a matter of planning judgment, that minimal weight must be given to it or that it should be disapplied or treated as a “non-policy” as if the development plan was absent or silent. However, Lord Carnwath said [63] that the inspector in the Richborough Estates appeal “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)”.
Lessons for decision-taking:
· The “policies for the supply of housing” deemed to be out-of-date in the absence of a five-year supply of deliverable sites for housing are (only) those dealing with the numbers and distribution of housing – not policies dealing generally with the disposition or restriction of new development in an area.
· But the lack of a five-year supply is really just a trigger for the operation of paragraph 14 of the NPPF.
· Policy in the NPPF cannot displace the statutory priority given to the development plan. It is always simply a ‘material consideration’.
· The examples given in footnote 9 to paragraph 14 in the NPPF must be read as including the related development plan policies.
· The weight to be given to competing factors in the ‘tilted’ planning balance is not conclusively determined on the basis of whether a policy is or is not up-to-date. Weight is a matter for the decision-taker based on all the circumstances of the case.
· In the Richborough appeal the inspector had been entitled, as a matter of planning judgment, to reduce the weight given to the development plan ‘restrictive policies’ protecting the open countryside and the green gap on the basis that both were based on out-of-date provisions to meet the up-to-date housing requirements (the adopted development plan period expired in 2011).
· In the Hopkins appeal the inspector had been entitled to regard as out-of-date policies in a recently adopted development plan that did not meet the objectives of paragraph 47 so that the weight given to restrictive policies might need to be reduced if the housing objectives were to be fulfilled.
· Where a development plan indicates a refusal, a key judgment for decision-takers will often be whether the operation of paragraph 14 gives rise to a material consideration of sufficient weight to displace the statutory presumption.
Hugh Richards – hr@no5.com
No5 Barristers' Chambers – www.no5.com
10 May 2017
