Easter Term [2017] UKSC 37 On appeals from: [2016] EWCA Civ 168, [2015] EWHC 132 (Admin) and [2015] EWHC 410 (Admin)

JUDGMENT
Suffolk Coastal District Council (Appellant) v
Hopkins Homes Ltd and another (Respondents)
Richborough Estates Partnership LLP and another
(Respondents) v Cheshire East Borough Council
(Appellant)
before
Lord Neuberger, President
Lord Clarke
Lord Carnwath
Lord Hodge
Lord Gill
JUDGMENT GIVEN ON
10 May 2017
Heard on 22 and 23 February 2017
Appellants (Cheshire and
Suffolk)
Respondent (Hopkins)
Martin Kingston QC
Hugh Richards
Christopher Lockhart

Mummery QC
Jonathan Clay Zack Simons
Dr Ashley Bowes
(Instructed by Sharpe
Pritchard LLP
)
(Instructed by DLA Piper
UK LLP (Birmingham)
)
Respondent (Richborough)
Christopher Young
James Corbet Burcher
(Instructed by Town Legal
LLP
)
Respondent (SSCLG)
Hereward Phillpot QC
Richard Honey
(Instructed by The
Government Legal
Department
)
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LORD CARNWATH: (with whom Lord Neuberger, Lord Clarke, Lord
Hodge and Lord Gill agree)
Introduction
1. The appeals relate to the proper interpretation of paragraph 49 of the National
Planning Policy Framework (“NPPF”), which is in these terms:
“Housing applications should be considered in the context of
the presumption in favour of sustainable development.
Relevant policies for the supply of housing should not be
considered up-to-date if the local planning authority cannot
demonstrate a five-year supply of deliverable housing sites.”
2. The Court of Appeal observed that the interpretation of this paragraph had
been considered by the Administrative Court on seven separate occasions between
October 2013 and April 2015 with varying results. The court had been urged by all
counsel “to bring much needed clarity to the meaning of the policy”.
Notwithstanding the clarification provided by the impressive judgment of the court
(given by Lindblom LJ), controversy remains. The appeals provide the opportunity
for this court not only to consider the narrow issues of interpretation of para 49, but
to look more broadly at issues concerning the legal status of the NPPF and its
relationship with the statutory development plan.
3. Both appeals relate to applications for housing development, one at Yoxford
in the administrative area of the Suffolk Coastal District Council (“the Yoxford
site”), and the other near Willaston in the area of Cheshire East Borough Council
(“the Willaston site”). In the first the council’s refusal of permission was upheld by
the inspector on appeal, but his refusal was quashed in the High Court (Supperstone
J), and that decision was confirmed by the Court of Appeal. In the second, the
council failed to determine the application, and the appeal was allowed by the
inspector. The council’s challenge succeeded in the High Court (Lang J), but that
decision was reversed by the Court of Appeal, the judgment of the court being given
by Lindblom LJ. Both councils appeal to this court.
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The statutory provisions
4. The relevant statutory provisions are found in the Town and Country
Planning Act 1990 (“the 1990 Act”) and the Planning and Compulsory Purchase Act
2004 (“the 2004 Act”).
Plan-making
5. Part 2 of the 2004 Act deals with “local development”. Each local planning
authority in England is required to “keep under review the matters which may be
expected to affect the development of their area or the planning of its development”
(2004 Act section 13), and to prepare a “local development scheme”, which (inter
alia) specifies the local development documents which are to be “development plan
documents” (section 15). The authority’s local development documents “must
(taken as a whole) set out the authority’s policies (however expressed) relating to
the development and use of land in their area” (section 17). “Local development
documents” are defined by regulations made under section 17(7). In short they are
documents which contain statements as to the development and use of land which
the authority wishes to encourage, the allocation of sites for particular types of
development, and development management and site allocations policies intended
to guide determination of planning applications. Together they comprise the
“development plan” or “local plan” for the area (Town and Country Planning (Local
Planning) (England) Regulations (SI 2012/767) regulations 5 and 6).
6. In preparing such documents, the authority must have regard (inter alia) to
“national policies and advice contained in guidance issued by the Secretary of State”
(section 19(2)). Every development plan document must be submitted to the
Secretary of State for “independent examination”, one of the purposes being to
determine whether it complies with the relevant statutory requirements, including
section 19 (section 20(1)(5)(a)). The Secretary of State may, if he thinks that a local
development document is “unsatisfactory”, direct the local planning authority to
modify the document (section 21). Section 39 gives statutory force to the concept of
“sustainable development” (undefined). Any person or body exercising any function
under Part 2 in relation to local development documents must exercise it “with the
objective of contributing to the achievement of sustainable development”, and for
that purpose must have regard to “national policies and advice contained in guidance
issued by the Secretary of State …” An adopted plan may be challenged on legal
grounds by application to the High Court made within six weeks of the date of
adoption, but not otherwise (section 113). Schedule 8 contained transitional
provisions providing generally for a transitional period of three years, after which
the plans produced under the previous system ceased to have effect subject to the
power of the Secretary of State to “save” specified policies by direction.
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Planning applications
7. Provision is made in the 1990 and 2004 Acts for the development plan to be
taken into account in the handling of planning applications:
1990 Act section 70(2)
“In dealing with such an application the authority shall have
regard to –
(a) the provisions of the development plan, so far as
material to the application,
(b) any local finance considerations, so far as
material to the application, and
(c) any other material considerations.”
2004 Act section 38(6)
“If regard is to be had to the development plan for the purpose
of any determination to be made under the planning Acts the
determination must be made in accordance with the plan unless
material considerations indicate otherwise.”
Unlike the development plan provisions, these sections contain no specific
requirement to have regard to national policy statements issued by the Secretary of
State, although it is common ground that such policy statements may where relevant
amount to “material considerations”.
8. The principle that the decision-maker should have regard to the development
plan so far as material and “any other material considerations” has been part of the
planning law since the Town and Country Planning Act 1947. The additional weight
given to the development plan by section 38(6) reproduces the effect of a provision
first seen in the Planning and Compensation Act 1991 section 54A. In City of
Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, the
equivalent provision (section 18A of the Town and Country Planning (Scotland) Act
1972) was described by Lord Hope (p 1450B) as designed to “enhance the status”
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of the development plan in the exercise of the planning authority’s judgment. Lord
Clyde spoke of it as creating “a presumption” that the development plan is to govern
the decision, subject to “material considerations”, as for example where “a particular
policy in the plan can be seen to be outdated and superseded by more recent
guidance”. However, the section had not touched the well-established distinction
between the respective roles of the decision-maker and the court:
“It has introduced a requirement with which the decisionmaker must comply, namely the recognition of the priority to
be given to the development plan. It has thus introduced a
potential ground on which the decision-maker could be faulted
were he to fail to give effect to that requirement. But beyond
that it still leaves the assessment of the facts and the weighing
of the considerations in the hands of the decision-maker …” (p
1458)
9. An appeal against a refusal of planning permission lies to the Secretary of
State, who is subject to the same duty in respect of the development plan (1990 Act
sections 78, 79(4)). Regulations under section 79(6) and Schedule 6 now provide for
most categories of appeals, including those here in issue, to be determined, not by
the Secretary of State, but by an “appointed person” (normally referred to as a
planning inspector). The decision on appeal may be challenged on legal grounds in
the High Court (section 288).
The National Planning Policy Framework
10. The Framework (or “NPPF”) was published on 27 March 2012. One purpose,
in the words of the foreword, was to “(replace) over a thousand pages of national
policy with around 50, written simply and clearly”, thus “allowing people and
communities back into planning”. The “Introduction” explains its status under the
planning law:
“Planning law requires that applications for planning
permission must be determined in accordance with the
development plan, unless material considerations indicate
otherwise. The National Planning Policy Framework must be
taken into account in the preparation of local and
neighbourhood plans, and is a material consideration in
planning decisions. …”
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11. NPPF is divided into three main parts: “Achieving sustainable development”
(paragraphs 6 to 149), “Plan-making” (paragraphs 150 to 185) and “Decisiontaking” (paragraphs 186 to 207). Paragraph 7 refers to the “three dimensions to
sustainable development: economic, social and environmental”. Paragraph 11
begins a group of paragraphs under the heading “the presumption in favour of
sustainable development”. Paragraph 12 makes clear that the NPPF “does not
change the statutory status of the development plan as the starting point for decision
making”. Paragraph 13 describes the NPPF as “guidance for local planning
authorities and decision-takers both in drawing up plans and as a material
consideration in determining applications”.
12. Paragraph 14, which is important in the present appeals, deals with the
“presumption in favour of sustainable development”, which is said to be “at the heart
of” the NPPF and which should be seen as “a golden thread running through both
plan-making and decision-taking”. It continues:
“For plan-making this means that:
 local planning authorities should positively seek
opportunities to meet the development needs of their area;
 Local Plans should meet objectively assessed needs, with
sufficient flexibility to adapt to rapid change, 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.
For decision-taking this means:
 approving development proposals that accord with the
development plan without delay; and
 where the development plan is absent, silent or relevant
policies are out-of-date, granting permission unless:
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– 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.”
We were told that the penultimate point (“any adverse impacts …”) is referred to by
practitioners as “the tilted balance”. I am content for convenience to adopt that
rubric.
13. Footnote 9 (in the same terms for both parts) gives examples of the “specific
policies” referred to:
“For example, those policies relating to sites protected under
the Birds and Habitats Directives (see paragraph 119) and/or
designated as Sites of Special Scientific Interest; land
designated as Green Belt, Local Green Space, an Area of
Outstanding Natural Beauty, Heritage Coast or within a
National Park (or the Broads Authority); designated heritage
assets; and locations at risk of flooding or coastal erosion.”
14. These are said to be examples. Thus the list is not exhaustive. Further,
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. Paragraph 14 cannot, and is clearly not intended to, detract from the priority
given by statute to the development plan, as emphasised in the preceding paragraphs.
Indeed, some of the references only make sense on that basis. For example, the
reference to “Local Green Space” needs to be read with paragraph 76 dealing with
that subject, which envisages local communities being able “through local and
neighbourhood plans” to identify for “special protection green areas of particular
importance to them”, and so “rule out new development other than in very special
circumstances …”
15. Section 6 (paragraphs 47 to 55) is entitled “Delivering a wide choice of high
quality homes”. Paragraph 47 states the primary objective of the section:
“To boost significantly the supply of housing, local planning
authorities should:
Page 8
– use their evidence base to ensure that their Local Plan meets
the full, objectively assessed needs for market and
affordable housing in the housing market area, as far as is
consistent with the policies set out in [the NPPF], including
identifying key sites which are critical to the delivery of the
housing strategy over the plan period;
– identify and update annually a supply of specific
deliverable sites sufficient to provide five years’ worth of
housing against their housing requirements with an
additional buffer of 5% … to ensure choice and competition
in the market for land. …;
– identify a supply of specific, developable sites or broad
locations for growth, for years six to ten and, where
possible, for years 11-15;
– for market and affordable housing, illustrate the expected
rate of housing delivery through a housing trajectory for the
plan period and set out a housing implementation strategy
for the full range of housing describing how they will
maintain delivery of a five-year supply of housing land to
meet their housing target; and
– set out their own approach to housing density to reflect local
circumstances.”
16. This group of provisions provides the context for paragraph 49, central to
these appeals and quoted at the beginning of this judgment; and in particular for the
advice that “relevant policies for the supply of housing” should not be considered
“up-to-date”, unless the authority can demonstrate a five-year supply of deliverable
housing sites.
17. Section 12 is headed “Conserving and enhancing the historic environment”
(paragraphs 126 to 141). It includes policies for “designated” and “non-designated”
heritage assets, as defined in the glossary. The former cover such assets as World
Heritage Sites, Scheduled Monuments and others designated under relevant
legislation. A non-designated asset is one “identified as having a degree of
significance meriting consideration in planning decisions because of its heritage
interest”. Paragraph 135 states:
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“The effect of an application on the significance of a nondesignated heritage asset should be taken into account in
determining the application. In weighing applications that
affect directly or indirectly non-designated heritage assets, a
balanced judgment will be required having regard to the scale
of any harm or loss and the significance of the heritage asset.”
“Significance” in this context is defined by the glossary in Annex 2 as meaning “the
value of a heritage asset to this and future generations because of its heritage
interest”, which may be derived “not only from a heritage asset’s physical presence,
but also from its setting”.
18. Annex 1 (“Implementation”) states that policies in the Framework “are
material considerations which local planning authorities should take into account
from the day of its publication” (paragraph 212); and that, where necessary, plans,
should be revised as quickly as possible to take account of the policies “through a
partial review or by preparing a new plan” (paragraph 213). However, it also
provides that for a transitional period of a year decision-takers “may continue to give
full weight to relevant policies adopted since 2004, even if there is a limited degree
of conflict with this Framework” (paragraph 214); but that thereafter
“… due weight should be given to relevant policies in existing
plans according to their degree of consistency with this
framework (the closer the policies in the plan to the policies in
[the NPPF], the greater the weight that may be given).”
(paragraph 215)
NPPF – Legal status and Interpretation
19. The court heard some discussion about the source of the Secretary of State’s
power to issue national policy guidance of this kind. The agreed Statement of Facts
quoted without comment a statement by Laws LJ (R (West Berkshire District
Council) v Secretary of State for Communities and Local Government [2016]
EWCA Civ 441; [2016] 1 WLR 3923, para 12) that the Secretary of State’s power
to formulate and adopt national planning policy is not given by statute, but is “an
exercise of the Crown’s common law powers conferred by the royal prerogative.”
In the event, following a query from the court, this explanation was not supported
by any of the parties at the hearing. Instead it was suggested that his powers derived,
expressly or by implication, from the planning Acts which give him overall
responsibility for oversight of the planning system (see R (Alconbury Developments
Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2
AC 295, paras 140-143 per Lord Clyde). This is reflected both in specific
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requirements (such as in section 19(2) of the 2004 Act relating to plan-preparation)
and more generally in his power to intervene in many aspects of the planning
process, including (by way of call-in) the determination of appeals.
20. In my view this is clearly correct. The modern system of town and country
planning is the creature of statute (see Pioneer Aggregates (UK) Ltd v Secretary of
State for the Environment [1985] AC 132, 140-141). Even if there had been a preexisting prerogative power relating to the same subject-matter, it would have been
superseded (see R (Miller) v Secretary of State for Exiting the European Union
(Birnie intervening) [2017] 2 WLR 583, para 48). (It may be of interest to note that
the great Case of Proclamations (1610) 12 Co Rep 74, which was one of the earliest
judicial affirmations of the limits of the prerogative (see Miller para 44) was in one
sense a planning case; the court rejected the proposition that “the King by his
proclamation may prohibit new buildings in and about London …”.)
21. Although planning inspectors, as persons appointed by the Secretary of State
to determine appeals, are not acting as his delegates in any legal sense, but are
required to exercise their own independent judgement, they are doing so within the
framework of national policy as set by government. It is important, however, in
assessing the effect of the Framework, not to overstate the scope of this policymaking role. 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 section 70(2) of the 1990 Act (see R (Cala Homes (South) Ltd)
v Secretary of State for Communities and Local Government [2011] EWHC 97
(Admin); [2011] 1 P & CR 22, para 50 per Lindblom J). 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 not so as to displace
or distort, the statutory scheme.
Law and policy
22. The correct approach to the interpretation of a statutory development plan
was discussed by this court in Tesco Stores Ltd v Dundee City Council (ASDA Stores
Ltd intervening) [2012] UKSC 13; 2012 SLT 739. Lord Reed rejected a submission
that the meaning of the development plan was a matter to be determined solely by
the planning authority, subject to rationality. He said:
“The development plan is a carefully drafted and considered
statement of policy, published in order to inform the public of
the approach which will be followed by planning authorities in
decision-making unless there is good reason to depart from it.
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It is intended to guide the behaviour of developers and planning
authorities. As in other areas of administrative law, the policies
which it sets out are designed to secure consistency and
direction in the exercise of discretionary powers, while
allowing a measure of flexibility to be retained. Those
considerations point away from the view that the meaning of
the plan is in principle a matter which each planning authority
is entitled to determine from time to time as it pleases, within
the limits of rationality. On the contrary, these considerations
suggest that in principle, in this area of public administration
as in others … policy statements should be interpreted
objectively in accordance with the language used, read as
always in its proper context.” (para 18)
He added, however, that such statements should not be construed as if they were
statutory or contractual provisions:
“Although a development plan has a legal status and legal
effects, it is not analogous in its nature or purpose to a statute
or a contract. As has often been observed, development plans
are full of broad statements of policy, many of which may be
mutually irreconcilable, so that in a particular case one must
give way to another. In addition, many of the provisions of
development plans are framed in language whose application
to a given set of facts requires the exercise of judgment. Such
matters fall within the jurisdiction of planning authorities, and
their exercise of their judgment can only be challenged on the
ground that it is irrational or perverse (Tesco Stores Ltd v
Secretary of State for the Environment [1995] 1 WLR 759, 780
per Lord Hoffmann) …” (para 19)
23. In the present appeal these statements were rightly taken as the starting point
for consideration of the issues in the case. It was also common ground that policies
in the Framework should be approached in the same way as those in a development
plan. However, some concerns were expressed by the experienced counsel before
us about the over-legalisation of the planning process, as illustrated by the
proliferation of case law on paragraph 49 itself (see paras 27ff below). This is
particularly unfortunate for what was intended as a simplification of national policy
guidance, designed for the lay-reader. Some further comment from this court may
therefore be appropriate.
24. In the first place, it is important that the role of the court is not overstated.
Lord Reed’s application of the principles in the particular case (para 18) needs to be
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read in the context of the relatively specific policy there under consideration. Policy
45 of the local plan provided that new retail developments outside locations already
identified in the plan would only be acceptable in accordance with five defined
criteria, one of which depended on the absence of any “suitable site” within or linked
to the existing centres (para 5). The short point was the meaning of the word
“suitable” (para 13): suitable for the development proposed by the applicant, or for
meeting the retail deficiencies in the area? It was that question which Lord Reed
identified as one of textual interpretation, “logically prior” to the exercise of
planning judgment (para 21). As he recognised (see para 19), some policies in the
development plan may be expressed in much broader terms, and may not require,
nor lend themselves to, the same level of legal analysis.
25. It must be remembered that, whether in a development plan or in a nonstatutory statement such as the NPPF, these are statements of policy, not statutory
texts, and must be read in that light. Even where there are disputes over
interpretation, they may well not be determinative of the outcome. (As will appear,
the present can be seen as such a case.) Furthermore, 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. With the support and
guidance of the Planning Inspectorate, they have primary responsibility for
resolving disputes between planning authorities, developers and others, over the
practical application of the policies, national or local. As I observed in the Court of
Appeal (Wychavon District Council v Secretary of State for Communities and Local
Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in
some ways analogous to that of expert tribunals, in respect of which the courts have
cautioned against undue intervention by the courts in policy judgments within their
areas of specialist competence (see Secretary of State for the Home Department v
AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)
26. Recourse to the courts may sometimes be needed to resolve distinct issues of
law, or to ensure consistency of interpretation in relation to specific policies, as in
the Tesco case. In that exercise the specialist judges of the Planning Court have an
important role. However, the judges are entitled to look to applicants, seeking to rely
on matters of planning policy in applications to quash planning decisions (at local
or appellate level), to distinguish clearly between issues of interpretation of policy,
appropriate for judicial analysis, and issues of judgement in the application of that
policy; and not to elide the two.
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The two appeals
Evolving judicial guidance
27. To understand the reasoning of the two inspectors in the instant cases, it is
necessary to set it in the context of the evolving High Court jurisprudence. The
decisions in the two appeals were given in July and August 2014 respectively, after
inquiries which ended in both cases in June. It is not entirely clear what information
was available to the inspectors as to the current state of the High Court jurisprudence
on this topic. The Yoxford inspector referred only to William Davis v Secretary of
State for Communities and Local Government [2013] EWHC 3058 (Admin) (Lang
J, 11 October 2013). This seems to have been the first case in which this issue had
arisen. One of the grounds of refusal was based on a policy E20 the effect of which
was generally to exclude development in a so-called “green wedge” area defined on
the proposals map. Lang J recorded an argument for the developer that the policy
should have been regarded as a “relevant policy for the supply of housing” under
paragraph 49 because “the restriction on development potentially affects housing
development”. The judge rejected this argument summarily, saying “policy E20
does not relate to the supply of housing and therefore is not covered by paragraph
49” (her emphasis).
28. By the time the two inquiries in the present case ended (June 2014), and at
the time of the decisions, it seems that the most recent judicial guidance then
available on the interpretation of paragraph 49 was that of Ouseley J in South
Northamptonshire Council v Secretary of State for Communities and Local
Government and Barwood Land [2014] EWHC 573 (Admin) (10 March 2014) (“the
Barwood Land case”). Ouseley J favoured a wider reading which “examines the
degree to which a particular policy generally affects housing numbers, distribution
and location in a significant manner”. He thought that the language could not
sensibly be given a very narrow meaning because
“This would mean that policies for the provision of housing
which were regarded as out of date, nonetheless would be given
weight, indirectly but effectively through the operation of their
counterpart provisions in policies restrictive of where
development should go …”
He contrasted general policies, such as those protecting “the countryside”, with
policies designed to protect specific areas or features “such as gaps between
settlements, the particular character of villages or a specific landscape designation,
all of which could sensibly exist regardless of the distribution and location of
housing or other development.”
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29. At that time, it seems to have been assumed that if a policy were deemed to
be “out-of-date” under paragraph 49, it was in practice to be given minimal weight,
in effect “disapplied” (see eg Cotswold District Council v Secretary of State for
Communities and Local Government [2013] EWHC 3719 (Admin), para 72 per
Lewis J). In other words, it was treated for the purposes of paragraph 14 as nonpolicy, in the same way as if the development plan were “absent” or “silent”. On
that view, it was clearly important to establish which policies were or were not to be
treated as out-of-date in that sense. Later cases (after the date of the present
decisions) introduced a greater degree of flexibility, by suggesting that paragraph 14
did not take away the ordinary discretion of the decision-maker to determine the
weight to be given even to an “out-of-date” policy; depending, for example, on the
extent of the shortfall and the prospect of development coming forward to make it
up (see eg Crane v Secretary of State for Communities and Local Government
[2015] EWHC 425 (Admin), para 71 per Lindblom J). As will be seen, this idea was
further developed in Lindblom LJ’s judgment in the present case.
The Yoxford site
30. In September 2013 Suffolk Coastal District Council refused planning
permission for a development of 26 houses on land at Old High Road in Yoxford.
The applicant, Hopkins Homes Ltd (“Hopkins”), appealed to an inspector appointed
by the Secretary of State. He dismissed the appeal in a decision letter dated 15 July
2014, following an inquiry which began in February and ended in June 2014.
31. The statutory development plan for the area comprised the Suffolk Coastal
District Local Plan (“SCDLP”) adopted in July 2013, and certain “saved” policies
from the previous local plan (“the old Local Plan”) adopted in December 1994.
Chapter 3 SCDLP set out a number of “strategic policies”, including:
i) Under the heading “Housing”, Policy SP2 (“Housing numbers and
Distribution”) proposed as its “core strategy” to make provision for 7,900
new homes across the district in the period 2010-2027. In addition, “an early
review” to be commenced by 2015 was to identify “the full, objectively
assessed housing needs” for the district, with proposals to ensure that these
were met so far as consistent with the NPPF. A table showed the proposed
locations across the district to make up the total of 7,900 homes.
ii) Under the heading “The Spatial Strategy”, Policy SP19 (“Settlement
Policy”) identified Yoxford as one of a number of Key Service Centres,
which provide “an extensive range of specified facilities”, and where “modest
estate-scale development” may be appropriate “within the defined physical
limits” (under policy SP27 – “Key and Local Service Centres”). Outside these
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settlements (under policy SP 29 – “The Countryside”) there was to be “no
development other than in special circumstances”.
iii) The commentary to SP19 (para 4.05) explained that “physical limits
boundaries” or “village envelopes” would be drawn up for the larger
settlements, but that these limits are “a policy tool” and that where allocations
are proposed outside the envelopes, the envelopes would be redrawn to
include them.
32. In his report on the examination of the draft SCDLP, the inspector had
commented on the adequacy of the housing provision (paras 31-51). He had noted
how the proposed figure of 7,590 homes fell short of what was later agreed to be the
requirement for the plan period of 11,000 extra homes. He had considered whether
to suspend the examination to enable the council to assess the options. He decided
not to do so, recognising that there were other sites which might come forward to
boost supply, and the advantages of enabling these to be considered “in the context
of an up-to-date suite of local development management policies that are consistent
with the Framework …”
33. The “saved” policies from the old plan included:
AP4 (“Parks and gardens of historic or landscape interest”)
“The District Council will encourage the preservation and/or
enhancement of parks and gardens of historic and landscape
interest and their surroundings. Planning permission for any
proposed development will not be granted if it would have a
materially adverse impact on their character, features or
immediate setting.”
AP13 (“Special Landscape Areas”)
“The valleys and tributaries of (named rivers) and the Parks and
Gardens of Historic or Landscape Interest are designated as
Special Landscape Areas and shown on the Proposals Map.
The District Council will ensure that no development will take
place which would be to the material detriment of, or materially
detract from, the special landscape quality.”
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The appeal site formed part of an area of Historic Parkland (related to an 18th
century house known as “Grove Park”) identified by the council in its
Supplementary Planning Guidance 6 “Historic Parks and Gardens” (SPG) dated
December 1995.
34. In his decision-letter on the planning appeal, the inspector identified the main
issues as including: consideration of a five years’ supply of housing land, the
principle of development outside the defined village, and the effects of the proposal
on the local historic parkland and landscape (para 4). He referred to paragraphs 14
and 49 of the NPPF, which he approached on the basis that it was “very unlikely
that a five years’ supply of housing land could now be demonstrated” (paras 5-6).
There had been a debate before him whether the recent adoption of the local plan
meant that its policies are “automatically up-to-date”, but he read the comments of
the examining Inspector on the need for an early review of housing delivery as
indicating the advantages of “considering development in the light of other up-to
date policies”, whilst accepting that pending the review “relevant policies for the
supply of housing may be considered not to be up-to-date” (para 7).
35. He then considered which policies were “relevant policies for the supply of
housing” within the meaning of paragraph 49 (paras 8-9). Policy SP2 “which sets
out housing provision for the District” was one such policy and “cannot be
considered as up-to-date”. Policy SP15 relating to landscape and townscape “and
not specifically to the supply of housing” was not a relevant policy “and so is up-todate”. For the same reason, policy SP19, which set the settlement hierarchy and
showed percentages of total proposed housing for “broad categories of settlements”,
but did not suggest figures or percentages for individual settlements, was also seen
as up-to-date; as was SP27, which related specifically to Key and Local Service
Centres, and sought, among other things, to reinforce their individual character.
36. Of the saved policy AP4 he noted “a degree of conflict” with paragraph 215
of the Framework “due to the absence of a balancing judgement in Policy AP4”, but
thought its “broad aim” consistent with the aims of the Framework. He said: “these
matters reduce the weight that I attach to Policy AP4, although I shall attach some
weight to it”. Similarly, he thought Policy AP13 consistent with the aims of the
Framework to “recognise the intrinsic quality of the countryside and promote
policies for the conservation and enhancement of the natural environment” (para
10).
37. In relation to the proposal for development outside the defined village limits,
he observed that the appeal site was outside the physical limits boundary “as defined
in the very recently adopted Local Plan”. He regarded the policy directing
development to within the physical limits of the settlement to be “in accordance with
Page 17
one of the core principles of the Framework, recognising the intrinsic character and
beauty of the countryside”. On this aspect he concluded:
“I consider that the appeal site occupies an important position
adjacent to the settlement, where Old High Road marks the end
of the village and the start to the open countryside. The
proposed development would be unacceptable in principle,
contrary to the provisions of Policies SP27 and SP29 and
contrary to one of the core principles of the Framework.” (paras
13-14)
38. As to its location within a historic parkland, he discussed the quality of the
landscape and the impact of the proposal, and concluded:
“20. In relation to the built character and layout of Yoxford
and its setting, Old High Road forms a strong and definite
boundary to the built development of the village here. I do not
agree that the proposal forms an appropriate development site
in this respect, but would be seen as an ad-hoc expansion across
what would otherwise be seen as the village/countryside
boundary and the development site would not be contained to
the west by any existing logical boundary.
21. In respect of these matters, the historic parkland forms a
non-designated heritage asset, as defined in the Framework and
I conclude that the proposal would have an unacceptable effect
on the significance of this asset. In relation to local policies, I
find that the proposal would be in conflict with the aims of
Policies AP4 and AP13 of the old Local Plan …”
39. Finally, under the heading “The planning balance”, he acknowledged the
advantage that the proposal would bring “additional homes, including some
affordable, within a District where the supply of homes is a concern”, but said:
“However, I have found significant conflict with policies in the
recently adopted Local Plan. I have also found conflict with
some saved policies of the old Local Plan and I have sought to
balance these negative aspects of the proposal against its
benefits. In doing so, I consider that the unacceptable effects of
the development are not outweighed by any benefits and means
that it cannot be considered as a sustainable form of
Page 18
development, taking account of its three dimensions as set out
at paragraph 7 of the Framework. Therefore, the proposal
conflicts with the aims of the Framework.” (paras 31-32)
40. Hopkins challenged the decision in the High Court on the grounds that the
inspector had misdirected himself in three respects: in short, as to the interpretation
of NPPF paragraph 49; as to the status of the limits boundary to Yoxford; and as to
the status of Policy AP4. The Secretary of State conceded that the inspector had
misapplied the policy in paragraph 49. Supperstone J referred to the approach of
Ouseley J in the Barwood Land case, with which he agreed, preferring it to that of
Lang J in the William Davis case. He accepted the submission for Hopkins that the
inspector had erred in thinking that paragraph 49 only applied to “policies dealing
with the positive provision of housing”, with the result that his decision had to be
quashed (paras 33, 38-41). He held in addition that this inspector had wrongly
proceeded on the basis that the village boundary had been defined in the recent local
plan, rather than in the earlier plan (para 46); and that he had failed properly to assess
the significance of the heritage asset as required by paragraph 135 of the Framework
(para 53). On 30 January 2015 Supperstone J quashed the decision. The council’s
appeal to the Court of Appeal failed. It now appeals to this court.
The Willaston site
41. The Crewe and Nantwich Replacement Local Plan, adopted on 17 February
2005 (“the adopted RLP”) sought to address the development needs of the Crewe
and Nantwich area for the period from 1996 to 2011. Under the 2004 Act, it should
have been replaced by a Local Development Framework by 2008. This did not
happen. As a consequence, the policies were saved by the Secretary of State by
Direction (dated 14 February 2008).
42. Crewe is identified as a location for new housing growth in the emerging
Local Plan, which is the subject of an ongoing examination in public and subject to
objections, as are some of the proposed housing allocations. At the time of the public
inquiry in June 2014, the emerging Local Plan was understood to be over two years
from being adopted. Richborough Estates Partnership LLP (“Richborough”) in
August 2013 applied to Cheshire East Borough Council for permission for a
development of up to 170 houses on land north of Moorfields in Willaston. The
council having failed to determine the application within the prescribed period,
Richborough appealed. Willaston is a settlement within the defined urban area of
Crewe, but for the most part is physically separate from the town. As a consequence
there is open land between Willaston and the main built up area of Crewe, within
which open land the appeal site lies.
Page 19
43. In the appeal Cheshire East relied on the adopted RLP, in particular policies
NE.2, NE.4, and RES.5:
i) Policy NE.2 (“Open Countryside”) seeks to protect the open
countryside from new build development for its own sake, permitting only a
very limited amount of small scale development mainly for agricultural,
forestry or recreational purposes.
ii) Policy NE.4 (“Green Gap”) relates to areas of open land around Crewe
(including the area of the appeal site) identified as needing additional
protection “in order to maintain the definition and separation of existing
communities”. The policy provides that permission will not be granted for
new development, including housing, save for limited exceptions. It has the
same inner boundary as NE.2.
iii) Policy RES.5 (“Housing in the open countryside”) permits only very
limited forms of residential development in the open countryside, such as
agricultural workers’ dwellings.
44. In his decision letter dated 1 August 2014 the inspector allowed the appeal
and granted planning permission for up to 146 dwellings. He concluded that
Cheshire East was unable to demonstrate the minimum five year supply of housing
land required under paragraph 47 of the NPFF. The council appears to have accepted
at the inquiry that policy NE.2 was a policy “for the supply of housing”. The
inspector thought that the same considerations applied to the other two policies
relied on by the council, all of which were therefore relevant policies within
paragraph 49, although he acknowledged that policy NE.4 also performed strategic
functions in maintaining the separation and definition of settlements and in
landscape protection. He noted also that two of the housing sites in the emerging
local plan were in designated “green gaps”, which led him to give policy NE.4
reduced weight (paras 31-35).
45. He concluded on this aspect (para 94):
“94. I have concluded that there is not a demonstrable fiveyear supply of deliverable housing sites (issue (i)). In the light
of that, the weight of policies in the extant RLP relevant to the
supply of housing is reduced (issue (ii)). That applies in
particular to policies NE.2, NE.4 and RES.5 in so far as their
extent derives from settlement boundaries that in turn reflect
Page 20
out-of-date housing requirements, though policy NE.4 also has
a wider purpose in maintaining gaps between settlements.”
46. He considered the application of the Green Gap policy, concluding that there
would be “no significant harm to the wider functions of the gap in maintaining the
definition and separation of these two settlements” (para 95). His overall conclusion
was as follows:
“101. I conclude that the proposed development would be
sustainable overall, and that the adverse effects of it would not
significantly and demonstrably outweigh the benefits when
assessed against the policies in the Framework as a whole.
There are no specific policies in the NPPF that indicate that this
development should be restricted. In such circumstances, and
where relevant development plan policies are out-of-date, the
NPPF indicates that permission should be granted unless
material considerations indicate otherwise. There are no further
material considerations that do so.”
47. The council’s challenge succeeded before Lang J, who quashed the
inspector’s decision by an order dated 25 February 2015. In short, she concluded
that the inspector had erred in treating policy NE.4 as a relevant policy under
paragraph 49, and in seeking “to divide the policy, so as to apply it in part only”
(para 63). Richborough’s appeal was allowed by the Court of Appeal with the result
that the permission was restored. The council appeals to this court.
The Court of Appeal’s interpretation
48. Giving the judgment of the court, Lindblom LJ referred to the relevant parts
of the NPPF and (at para 21) the three competing interpretations of paragraph 49:
i) Narrow: limited to policies dealing only 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.
ii) Wider: including both policies providing positively for the supply of
new housing and other policies, or “counterpart” policies, whose effect is to
restrain the supply by restricting housing development in certain parts of the
authority’s area.
Page 21
iii) Intermediate: as under (ii), but excluding policies designed to protect
specific areas or features, such as gaps between settlements, the particular
character of villages or a specific landscape designation (as suggested by
Ouseley J in the Barwood Land case).
49. He discussed the connection between paragraph 49 and the presumption in
favour of sustainable development in paragraph 14, which lay in the concept of
relevant policies being not “up-to-date” under paragraph 49, and therefore “out-ofdate” for the purposes of paragraph 14 (para 30). He explained the court’s reasons
for preferring the wider view of paragraph 49. He read the words “for the supply of
housing” as meaning “affecting the supply of housing”, which he regarded as not
only the “literal interpretation” of the policy, but “the only interpretation consistent
with the obvious purpose of the policy when read in its context”. He continued:
“33. Our interpretation of the policy does not confine the
concept of ‘policies for the supply of housing’ merely to
policies in the development plan that provide positively for the
delivery of new housing in terms of numbers and distribution
or the allocation of sites. It recognizes that the concept extends
to plan 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. It
reflects the reality that policies may serve to form the supply of
housing land either by creating it or by constraining it – that
policies of both kinds make the supply what it is.” (para 33)
50. The court rejected the “narrow” interpretation, advocated by the councils,
which it thought “plainly wrong”:
“It is both unrealistic and inconsistent with the context in which
the policy takes its place. It ignores the fact that in every
development plan there will be policies that complement or
support each other. Some will promote development of one
type or another in a particular location, or by allocating sites
for particular land uses, including the development of housing.
Others will reinforce the policies of promotion or the site
allocations by restricting development in parts of the plan area,
Page 22
either in a general way – for example, by preventing
development in the countryside or outside defined settlement
boundaries – or with a more specific planning purpose – such as
protecting the character of the landscape or maintaining the
separation between settlements.” (para 34)
51. Whether a particular policy of a plan was a relevant policy in that sense was
a matter for the decision-maker, not the court (para 45). Furthermore
“46. We must emphasize here that the policies in paragraphs
14 and 49 of the NPPF do not make ‘out-of-date’ policies for
the supply of housing irrelevant in the determination of a
planning application or appeal. Nor do they prescribe how
much weight should be given to such policies in the decision.
Weight is, as ever, a matter for the decision-maker … Neither
of those paragraphs of the NPPF says that a development plan
policy for the supply of housing that is ‘out-of-date’ should be
given no weight, or minimal weight, or, indeed, any specific
amount of weight. They do not say that such a policy should
simply be ignored or disapplied …”
52. In relation to the Yoxford site, the court agreed with Supperstone J that the
inspector had wrongly applied the erroneous “narrow” interpretation. Policies SP
19, 27 and 29, were all relevant policies in that they all “affect the supply of housing
land in a real way by restraining it” (paras 51-52). The court also agreed with the
judge that the inspector had been mistaken in assuming that the physical limits of
the village had been established in the 2013 plan (para 58); and also that he had
misapplied paragraph 135 relating to heritage assets (para 65). In that respect there
could be no criticism of his treatment of the impact of the development on the local
landscape, but what was lacking was
“… a distinct and clearly reasoned assessment of the effect the
development would have upon the significance of the parkland
as a ‘heritage asset’, and, crucially, the ‘balanced judgment’
called for by paragraph 135, ‘having regard to the scale of any
harm or loss and the significance of the heritage asset’.” (para
65)
53. In respect of the Willaston site, the court disagreed with Lang J’s conclusion
that policy NE.4 was not a relevant policy for the supply of housing. The inspector
had made no error of law in that respect, and his decision should be restored (paras
69-71).
Page 23
Discussion
Interpretation of paragraph 14
54. The argument, here and below, has concentrated on the meaning of paragraph
49, rather than paragraph 14 and the interaction between the two. However, since
the primary purpose of paragraph 49 is simply to act as a trigger to the operation of
the “tilted balance” under paragraph 14, it is important to understand how that is
intended to work in practice. The general effect 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. (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)
55. It has to be borne in mind also that paragraph 14 is not concerned solely with
housing policy. It needs to work for other forms of development covered by the
development plan, for example employment or transport. Thus, for example, there
may be a relevant policy for the supply of employment land, but it may become outof-date, perhaps because of the arrival of a major new source of employment in the
area. Whether that is so, and with what consequence, is a matter of planning
judgement, unrelated of course to paragraph 49 which deals only with housing
supply. This may in turn have an effect on other related policies, for example for
transport. The pressure for new land may mean in turn that other competing policies
will need to be given less weight in accordance with the tilted balance. But again
that is a matter of pure planning judgement, not dependent on issues of legal
interpretation.
56. If that is the right reading of paragraph 14 in general, it should also apply to
housing policies deemed “out-of-date” under paragraph 49, which must accordingly
be read in that light. It also shows why it is not necessary to label other policies as
“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 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”.
Page 24
Paragraph 49
57. Unaided by the legal arguments, I would have regarded the meaning of
paragraph 49 itself, taken in context, as reasonably clear, and not susceptible to
much legal analysis. It comes within a group of paragraphs dealing with delivery of
housing. The context is given by paragraph 47 which sets the objective of boosting
the supply of housing. In that context the words “policies for the supply of housing”
appear to do no more than indicate the category of policies with which we are
concerned, in other words “housing supply policies”. 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.
58. In so far as the paragraph 47 objectives are not met by the housing supply
policies as they stand, it is quite natural to describe those policies as “out-of-date”
to that extent. As already discussed, other categories of policies, for example those
for employment land or transport, may also be found to be out-of-date for other
reasons, so as to trigger the paragraph 14 presumption. The only difference is that
in those cases there is no equivalent test to that of the five-year supply for housing.
In neither case is there any reason to treat the shortfall in the particular policies as
rendering out-of-date other parts of the plan which serve a different purpose.
59. This may be regarded as adopting the “narrow” meaning, contrary to the
conclusion of the Court of Appeal. However, this should not be seen as leading, as
the lower courts seem to have thought, to the need for a legalistic exercise to decide
whether individual policies do or do not come within the expression. The important
question is not how to define individual policies, but whether the result is a fiveyear 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 overrestrictive 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.
60. The Court of Appeal wastherefore right to look for an approach which shifted
the emphasis to the exercise of planning judgement under paragraph 14. However,
it was wrong, with respect, to think that to do so it was necessary to adopt a reading
Page 25
of paragraph 49 which not only changes its language, but in doing so creates a form
of non-statutory fiction. On that 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 two appeals
62. Against this background I can deal relatively shortly with the two individual
appeals. On both I arrive ultimately at the same conclusion as the Court of Appeal.
63. It is convenient to begin with the Willaston appeal, where the issues are
relatively straightforward. On any view, quite apart from paragraph 49, the current
statutory development plan was out of date, in that its period extended only to 2011.
On my understanding of paragraph 49, the council and the inspector both erred in
treating policy NE.2 (“Countryside”) as “a policy for the supply of housing”. But
that did not detract materially from the force of his reasoning (see the summary in
paras 44-45 above). 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.
64. The Yoxford appeal provides an interesting contrast, in that there was an upto-date development plan, adopted in the previous year; but its housing supply
Page 26
policies failed to meet the objectives set by paragraph 47 of the NPPF. The inspector
rightly recognised that they should be regarded as “out-of-date” for the purposes of
paragraph 14. At the same time, it provides a useful illustration of the unreality of
attempting to distinguish between policies for the supply of housing and policies for
other purposes. Had it mattered, I would have been inclined to place in the housing
category policy SP2, the principal policy for housing allocations. SP 19 (settlement
policy) would be more difficult to place, since, though not specifically related to
housing, it was seen (as the commentary indicated) as a “planning tool” designed to
differentiate between developed areas and the countryside.
65. Understandably, in the light of the judicial guidance then available to him,
the inspector thought it necessary to make the distinction, and to reflect it in the
planning balance. He categorised both SP 19 and SP 27 as non-housing policies, and
for that reason to be regarded as “up-to-date” (see para 35 above). Under the Court
of Appeal’s interpretation this was an erroneous approach, because each of these
policies “affected” the supply of housing, and should have been considered out-ofdate for that reason. On my preferred approach his categorisation was not so much
erroneous in itself, as inappropriate and unnecessary. It only gave rise to an error in
law in so far as it may have distorted his approach to the application of paragraph
14.
66. As to that I agree with the courts below that his approach (through no fault
of his own) was open to criticism. Having found that the settlement policy was upto-date, and that the boundary had been approved in the recent plan, he seems to
have attached particular weight to the fact that it had been defined in “the very
recently adopted Local Plan” (para 37 above). I would not criticise him for failing
to record that it had been carried forward from the previous plan. In some
circumstances that could be a sign of robustness in the policy. But in this case it was
clear from the plan itself that the settlement boundary was, to an extent at least, no
more than the counterpart of the housing policies, and that, under the paragraph 14
balance, its weight might need to be reduced if the housing objectives were to be
fulfilled. He should not have allowed its supposed status as an “up-to-date” policy
under paragraph 49 to give it added weight. It is true that he also considered the
merits of the site (quite apart from the plan) as providing a “strong and definite
boundary” to the village (para 20). But I am not persuaded that this is sufficient to
make it clear that the decision would have been the same in any event.
67. I do not, however, agree with the Court of Appeal’s criticisms of his treatment
of the Heritage Asset policy. Paragraph 10 of his letter (summarised at para 36
above) is in my view a faithful application of the guidance in paragraph 215 of the
Framework. That does not, and could not, suggest that even “saved” development
plan policies are simply replaced by the policies in the Framework. What it does is
to indicate that the weight to be given to the saved policies should be assessed by
reference to their degree of consistency with the Framework. That is what the
Page 27
inspector did. Having done so he was entitled to be guided by the policies as stated
in the saved plans, and not treat them as replaced by paragraph 135.
68. In any event, in so far as there needs to be a “balanced judgement”, which the
Court of Appeal regarded as “crucial” (para 65), that seems to me provided by the
last section of his letter, headed appropriately “the planning balance”. Overall the
letter seems to me an admirably clear and carefully constructed appraisal of the
relevant planning issues, in the light of the judicial guidance then available. It is with
some reluctance therefore that I feel bound to agree with the Court of Appeal that
the decision must be quashed, albeit on narrower grounds. The result, is that the
order of Supperstone J will be affirmed, and the planning appeal will fall to be redetermined.
Conclusion
69. For these reasons I would dismiss both appeals.
LORD GILL: (with whom Lord Neuberger, Lord Clarke and Lord Hodge
agree)
70. I agree with Lord Carnwath’s conclusions on the decision that is appealed
against and with his views as to the disposal of these appeals. I only add some
comments on the approach that should be taken in the application of the National
Planning Policy Framework (the Framework) in planning applications for housing
development.
71. These appeals raise a question as to the respective roles of the courts and of
the planning authorities and the inspectors in relation to guidance of this kind; and
a specific question of interpretation arising from paragraph 49 of the Framework.
72. In Tesco Stores Ltd v Dundee City Council, (ASDA Stores Ltd intervening)
([2012] UKSC 13) Lord Reed considered the former question in relation to
development plan policies. He expressed the view, as a general principle of
administrative law, that policy statements should be interpreted objectively in
accordance with the language used, read as always in its proper context (at para 18).
The proper context, in my view, is provided by the over-riding objectives of the
development plan and the specific objectives to which the policy statement in
question is directed. Taking a similar approach to that of Lord Reed, I consider that
it is the proper role of the courts to interpret a policy where the meaning of it is
contested, while that of the planning authority is to apply the policy to the facts of
the individual case.
Page 28
73. In my opinion, the same distinction falls to be made in relation to guidance
documents such as the Framework. In both cases the issue of interpretation is the
same. It is about the meaning of words. That is a question for the courts. The
application of the guidance, as so interpreted, to the individual case is exclusively a
planning judgment for the planning authority and the inspectors.
74. The guidance given by the Framework is not to be interpreted as if it were a
statute. Its purpose is to express general principles on which decision-makers are to
proceed in pursuit of sustainable development (paras 6-10) and to apply those
principles by more specific prescriptions such as those that are in issue in these
appeals.
75. In my view, such prescriptions must always be interpreted in the overall
context of the guidance document. That context involves the broad purpose of the
guidance and the particular planning problems to which it is directed. Where the
guidance relates to decision-making in planning applications, it must be interpreted
in all cases in the context of section 70(2) of the Town and Country Planning Act
1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, to
which the guidance is subordinate. While the Secretary of State must observe these
statutory requirements, he may reasonably and appropriately give guidance to
decision-makers who have to apply them where the planning system is failing to
satisfy an unmet need. He may do so by highlighting material considerations to
which greater or less weight may be given with the over-riding objective of the
guidance in mind. It is common ground that such guidance constitutes a material
consideration (Framework, para 2).
76. In relation to housing, the objective of the Framework is clear. Section 6,
“Delivering a wide choice of high quality homes”, deals with the national problem
of the unmet demand for housing. The purpose of paragraph 47 is “to boost
significantly the supply of housing”. To that end it requires planning authorities (a)
to ensure inter alia that plans meet the full, objectively assessed needs for market
and affordable housing in the housing market area, as far as is consistent with the
policies set out in the Framework, including the identification of key sites that are
critical to the delivery of the housing strategy over the plan period; (b) to identify
and update annually a supply of specific deliverable sites sufficient to provide five
years’ worth of housing against their housing requirements, with an additional buffer
of 5% to ensure choice and competition in the market for the land; and (c) in the
longer term to identify a supply of specific, developable sites or broad locations for
growth for years six to ten and, where possible, for years 11-15.
77. The importance that the guidance places on boosting the supply of housing is
further demonstrated in the same paragraph by the requirements that for market and
affordable housing planning authorities should illustrate the expected rate of housing
Page 29
delivery through a housing trajectory for the plan period and set out a housing
implementation strategy for the full range of housing, describing how they will
maintain delivery of a five-years supply of housing land to meet their housing target;
and that they should set out their own approach to housing density to reflect local
circumstances. The message to planning authorities is unmistakeable.
78. 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.
79. 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.
80. This is the background to the interpretation of paragraph 49. The paragraph
applies where the planning authority has failed to demonstrate a five-years supply
of deliverable sites and is therefore failing properly to contribute to the national
housing requirement. In my view, paragraph 49 derives its content from paragraph
47 and must be applied in decision-making by reference to the general prescriptions
of paragraph 14.
81. To some extent the issue in these cases has been obscured by the doctrinal
controversy which has preoccupied the courts hitherto between the narrow and the
wider interpretation of the words “relevant policies for the supply of housing”. I
think that the controversy results from too narrow a focus on the wording of that
paragraph. I agree with the view taken by Lindblom LJ in his lucid judgement that
the task of the court is not to try to reconcile the various first instance judgments on
the point, but to interpret the policy of paragraph 49 correctly (at para 23). In
interpreting that paragraph, in my opinion, the court must read it in the policy
context to which I have referred, having in view the planning objective that the
Framework seeks to achieve.
82. I regret to say that I do not agree with the interpretation of the words “relevant
policies for the supply of housing” that Lindblom LJ has favoured. In my view, the
straightforward interpretation is that these words refer to the policies by which
acceptable housing sites are to be identified and the five-years supply target is to be
achieved. That is the narrow view. The real issue is what follows from that.
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83. 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 to date.
84. 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.
85. Paragraph 49 merely prescribes how the relevant policies for the supply of
housing are to be treated where the planning authority has failed to deliver the
supply. The decision-maker must next turn to the general provisions in the second
branch of paragraph 14. That takes as the starting point the presumption in favour
of sustainable development, that being the “golden thread” that runs through the
Framework in respect of both the drafting of plans and the making of decisions on
individual applications. The decision-maker should therefore be disposed to grant
the application unless the presumption can be displaced. It can be displaced on only
two grounds both of which involve a planning judgment that is critically dependent
on the facts. The first is that the adverse impacts of a grant of permission, such as
encroachment on the greenbelt, will “significantly and demonstrably” outweigh the
benefits of the proposal. Whether the adverse impacts of a grant of permission will
have that effect is a matter to be “assessed against the policies in the Framework,
taken as a whole”. That clearly implies that the assessment is not confined to
environmental or amenity considerations. The second ground is that specific policies
in the Framework, such as those described in footnote 9 to the paragraph, indicate
that development should be restricted. From the terms of footnote 9 it is reasonably
clear that the reference to “specific policies in the Framework” cannot mean only
policies originating in the Framework itself. It must also mean the development plan
policies to which the Framework refers. Green belt policies are an obvious example.
86. Although my interpretation of the guidance differs from that of the Court of
Appeal, I have come to the same conclusions in relation to the disposal of these
cases. I agree with Lord Carnwath that in the Willaston decision, notwithstanding
an erroneous interpretation of policy NE.2 as being a policy for the supply of
housing, the Inspector got the substance of the matter right and accurately applied
paragraph 14. I agree too with Lord Carnwath, for the reasons that he gives (at para
68), that in the Yoxford decision the Inspector made a material, but understandable,
error. I would therefore dismiss both appeals.