In the conjoined cases of Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council  UKSC 37, the Supreme Court was asked to clarify the interpretation of the phrase “relevant policies for the supply of housing” contained in paragraph 49 of the National Planning Policy Framework 2012 (“the NPPF”). This phrasing is important as it determines which local policies are out of date if a local authority cannot demonstrate a 5-year supply of deliverable housing sites, and therefore are not to be considered when determining a planning application.
The Court of Appeal gave this term a wide interpretation, with the effect that relevant policies for the supply of housing are not only policies dealing with the positive provision of housing but policies which restrict where housing may be provided. For example, under the Court of Appeal’s interpretation a policy restricting residential development which impacts the character of a historic landscape or garden would be a “relevant policy for the supply of housing”.
The Supreme Court disagreed with this interpretation and instead applied a narrow interpretation stating that there is no reason to treat policies of the development plan which serve a different purpose than positively planning for the supply of housing as out-of-date. Nevertheless, the Supreme Court said that this does not matter as the shortfall in the five-year housing supply will be sufficient to trigger paragraph 14 of the NPPF and the presumption in favour of sustainable development. The Court said that it is then up to the decision-maker as to what weight to give other policies such as policies on Areas of Outstanding Natural Beauty or Green Belt, which are specific policies in the NPPF that may lead to a refusal of an application if they indicate development should be restricted.
The Court seems to be guiding authorities that they should not be interfering with the presumption in favour of sustainable development, but appears to be allowing them to do so if they wish, by virtue of excluding restrictive policies from paragraph 49.
As well as providing the Court’s interpretation of paragraph 49, it also used the case as an opportunity to comment on the operation of the NPPF in general. The Court commented that it is a shame that so much case law exists regarding the interpretation of the NPPF, when its original aim was to simplify policy and enable a lay-person to understand planning.
The result of this judgment seems to be that the importance of whether a policy is a relevant policy for the supply of housing and be judged to be out-of-date is no more and instead the balancing act of whether specific policies restricting development outweigh the presumption in favour of sustainable development becomes more important.
The judgment seems to give local authorities more firepower to exercise their discretion as to whether to refuse permission for a site despite not having a five-year supply of housing, due to policies such as green belt, AONB, green gaps, etc. being applied considerable weight to rebut the presumption in favour of sustainable development. This may lead in more refusals by local authorities and more developers taking their application to appeal in the hope of obtaining a more favourable interpretation by a planning inspector.