The Meaning of “Housing Supply Policies” – clarity at last but not open season for housebuilders

The Meaning of “Housing Supply Policies” – clarity at last but not open season for housebuilders

CategoryNews Author John Pugh-Smith Date

This article was first published on Lexis®PSL on April 12, 2016

John Pugh-Smith considers the judgment in the linked appeals Court of Appeal’s decision  in Suffolk Coastal District Council v Hopkins Homes Ltd & Secretary of State for Communities and Local Government and Richborough Estates Ltd v Cheshire East Borough Council & Secretary of State for Communities and Local Government [2016] EWCA Civ168

Original news

On 17 March 2016 the Court of Appeal gave judgment in the linked appeals Suffolk District Council v Hopkins Homes Ltd & SSCLG and Richborough Estates Partnership LLP v Cheshire East Borough Council & SSGLG [2016] EWCA Civ 168. The issue before the Court concerned the meaning of  the phrase ‘relevant policies for the supply of housing’ in paragraph 49 of the National Planning Policy Framework (2012) (‘NPPF49’) .

What is the background to this case?

NPPF14 contains a presumption in favour of granting planning permission for sustainable development which either accords with the statutory development plan or where the development plan is absent, silent or relevant policies are out-of-date. NPPF49 advises that “relevant policies for the supply of housing’ should not be considered up-to-date if a local planning authority (‘LPA’) cannot demonstrate a five-year supply of deliverable housing sites”. The decision puts to rest years of controversy, played out in numerous planning appeals and a confusing series of High Court judgments, as to whether a ‘narrow’ interpretation should be taken of this phrase in which the words are construed as meaning ‘relevant policies providing for the amount and distribution of new housing development and the allocation of sites for such development’ or the so-called ‘intermediate’ or ‘compromise’ construction of the wording, in which the ‘narrow’ construction has been widened to capture restrictive policies of a general nature but not restrictive policies whose purpose is more specific (e.g. ‘green gaps’).

What was the key issue before the Court? 

It has approved an even ‘wider’ approach to ‘relevant policies’ construing the words to mean ‘relevant policies that affect the supply of housing’ and so including: “policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development” (Lindblom LJ, paragraph 33).

Such restrictive policies may (the Court emphasised ‘may’) have the effect of constraining the supply of housing land, in which event if a LPA is unable to demonstrate the requisite five-year-supply then relevant policies are liable to be regarded as not up to date for the purposes of NPPF49 and so out of date for the purposes of NPPF14.

What are the practical implications of this decision?

The Court has injected shades of grey into a debate that has often been treated as black and weight. The weight to be given to ‘out of date’ development plan policy will vary according to the circumstances, such as the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the LPA to address it, and the particular purposes of a restrictive policy. The Court envisaged ‘many cases’ in which restrictive policies are given sufficient weight to justify the refusal of planning permission despite being ‘out of date’ under NPPF49. It emphasised that ‘weight’ is always a matter of planning judgment for the decision-maker.

The Court further emphasised that the NPPF is a policy document which does not displace the statutory presumption in favour of the development plan and operates within the statutory framework; albeit as government policy it is “likely always to merit significant weight”. Accordingly, provided the decision-maker correctly construes NPPF49 in line with the Court’s interpretation, it is then a matter for his/its planning judgment reviewable only on Wednesbury reasonable grounds.

Whilst this decision is most welcome to the residential development industry there is still plenty in the Court’s judgment to counter-act the significance of that finding. If, for example, a decision-maker concludes that a development plan green belt policy is a ‘relevant policy’ and ‘out-of-date’ for the purposes of NPP49, not only does NPPF14 footnote 9 contain an important ‘unless’ , that such restrictive policies still apply with full force, but,  that particular ‘out-of-date’ development plan policy may still lawfully carry greater weight than the NPPF’s housing supply policies, dependant on the circumstances.

How does this fit in with other developments in this area?

The Court’s approach follows its trend towards trying not to allow planning decisions to become over-legalistic. For example, in Jones v Mordue (2015) EWCA Civ 1243 a differently constituted Court of Appeal held that, in relation to the impact of new development on the setting of a listed building, the reasons to be given by the decision-maker did  not have to separately address the specific statutory duty under s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Rather, they could be briefly stated, provided they were intelligible and adequate so as to enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues including how this issue of law was resolved. Again, the degree of particularity required depended entirely on the nature of the issues falling for decision

What action should lawyers be taking in light of this decision?

Discuss with their clients whether a current stance being taken by a LPA, or, an applicant/appellant should be challenged or maintained. The consequent correspondence trail may also have implications on whether an appeal should be pursued or, in the case of an LPA, an application taken back to Members as to whether it should still be resisted on sound planning grounds. It is also relevant to whether a costs award should be threatened.

Postscript: On 14th April the two unsuccessful authorities applied for permission to appeal to the Supreme Court.

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