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18 May
Case Law 2

Supreme Court Judgment - Fully Digested

Last week’s judgment issued by The Supreme Court, in relation to the Suffolk Coastal District Council (Appellant) v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council (Appellant), has been causing much discussions across the country on what this will mean for residential planning applications (and appeals) in the future.

NJL has digested the decision, discussed the consequences and what this will mean moving forward, with various Counsel and set out below is a summary of how this could impact upon your existing and future planning applications.

As many are aware, a longstanding debate for housing developments has centred on the interpretation of paragraph 49 of the National Planning Policy Framework and whether this should be a ‘wider’ one, incorporating policies which influence housing delivery, or if it should have a ‘narrow’ focus, and only relate to policies which explicitly relate to the supply of housing and exclude other policies which affect this. The Supreme Court decision has sought to clarify this matter, and states:

‘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.’ (para. 57).

Therefore, paragraph 49 of the Framework should only be applied to policies which are for the supply of housing, and not policies which affect their delivery. As a result of this judgment, policies which identify locations for housing, or set out a housing requirement for an authority, can be deemed policies for the supply of housing. Where it has been demonstrated that a five year housing land supply cannot be delivered, such policies should ‘not be considered up-to-date’.

Other policies, such as those which seek to protect open countryside, employment land, and other alternative uses, which have previously been argued as ‘relevant’ to the supply of housing, can no longer be considered ‘out-of-date’ where a housing land supply is not demonstrated.

Where it has been demonstrated that a five year housing land supply cannot be demonstrated, and therefore policies for the supply of housing are out-of-date, the second bullet point of paragraph 14 (in terms of decision-taking) is engaged, as such permission should be granted unless:

  • any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
  • specific policies in this Framework indicate development should be restricted.

The judgment makes clear that where paragraph 14 is engaged the operation of a ‘tilted balance’ is applied and permission should be granted ‘unless the presumption can be displaced’.

Policies which affect the supply of housing can be given reduced weight in the tilted balance, but this is a matter of planning judgement for the decision maker.

The extent to which weight on such policies can be reduced is considered against the level of need for a particular development, such as housing. For example, the following could all reduce the weight to be afforded to a policy where a five year housing land supply is not demonstrated:

  • The extent of the lack of a five year supply – the greater the deficit, the greater the need for housing;
  • Past under delivery rates of housing – where a council has struggled to deliver housing in the past, this demonstrates an increased need for housing;
  • Where it is demonstrated that there are no other available sites to meet the need, there is a clear requirement for deliverable sites;
  • The extent of the need for affordable homes within the authority.

This judgment has, in many ways, provided confirmation for the housebuilding industry over a matter which has been long debated and required a definitive response – we now have this. The effect that this will have upon the delivery of homes is yet to be seen, but this is likely to be significant given the current housing shortfall across the country and the continued need for new homes.

 

If you would like to know how this judgment could affect you and your interests please do not hesitate to contact NJL.

By Rebecca May & Charlotte Wynn

 

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