Hopkins Homes…the Consequences

4 September, 2017
by: Cripps Pemberton Greenish

Earlier this year, the Supreme Court issued its interpretation of the National Planning Policy Framework (the “NPPF”) in the conjoined cases of Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council [2017] UKSC 37. The Court decided that “relevant policies for the supply of housing”, as referred to at paragraph 49 of the NPPF and used to determine whether a local policy is classed as out of date, should be afforded a narrow interpretation and only apply to policies specifically dealing with the supply of housing. This was in contrast to the Court of Appeal’s judgment which broadened the scope of the wording to also include policies which restrict where housing may be provided. However, the Supreme Court also stated that this interpretation was mainly irrelevant as the shortfall in a local planning authority’s five-year housing land supply will automatically trigger the presumption in favour of sustainable development contained in paragraph 14 of the NPPF. Where the presumption, or tilted balance, applies development should be granted unless specific policies in the NPPF or policies contained in the development plan which are not out of date indicate development should be restricted. It is then up to the decision maker to apply weight to development plan policies, balancing them against the need for housing.

Since the judgment was issued, the Supreme Court’s decision has, perhaps unsurprisingly, been applied by planning inspectors in different ways. Two recent appeal decisions illustrate this.

The first is an appeal made by Keigar Homes Ltd against the decision of North Lincolnshire Council, which refused an outline application for residential development of approximately 135 dwellings. The application was refused because the site fell outside the development limits of the development plan. The Council accepted that its policies relating to development limits were relevant policies for the supply of housing and were out of date within the meaning of paragraph 49 of the NPPF. The inspector applied very limited weight to these policies as, “the restriction of development to land within the development limits, if strictly applied, would mean that the authority could not address the need for housing”. The key point to note is that the inspector, post-the Supreme Court’s judgment, was express in stating that he didn’t need to “label” whether policies were out of date under paragraph 49 of the NPPF. There wasn’t a five year housing supply and so the paragraph 14 presumption applied and planning permission was granted.

The second appeal was made by Gladman Developments Limited against Braintree District Council’s refusal of an outline application for up to 80 dwellings. Even though the Council recognised it could not demonstrate a 5 year housing land supply, it was argued that the adverse impacts of the development on the rural character of the countryside would significantly and demonstrably outweigh the benefits. Similar to the Keigar Homes appeal, this site was outside the town development boundaries and village envelopes as defined in the development plan. The Council took the view that the policy restricting development outside development boundaries and village envelopes was a relevant policy for the supply of housing, and subsequently decided not to contest its reason for refusal of the application. The inspector recognised that as the Council could not show a 5 year housing land supply, the presumption in favour of sustainable development was engaged. He took a different view, however, from the appellant and the Council, by deciding that when applying the Supreme Court’s narrow interpretation of paragraph 49, the policies in the Council’s development plan in question were not relevant policies for the supply of housing as they were not policies which positively provide for housing and therefore were not out of date policies. Applying s.38(6) of the Planning and Compulsory Purchase Act 2004, which states that where regard is to be had to a development plan for the purpose of a determination, the determination must be made in accordance with the plan unless material considerations indicate otherwise, the inspector found that the proposal would not accord with the development plan and dismissed the appeal.

The main policies which were the focus of the two appeals were relatively similar, in that they restrict residential development outside of specified areas. However, the two inspectors came to different conclusions as to whether the policies were to be classed as out of date and the weight given to them. In my view the inspector in Gladman applied too narrow an approach. The Supreme Court sought to provide that if there is no 5 years housing land supply then the paragraph 14 presumption should apply without an overly technical analysis of whether policies are “relevant policies for the supply of housing”.

That said, the Supreme Court’s judgment sought to provide more control to decision-makers in the weight to apply to policies which restrict the supply of housing but are not themselves policies for the supply of housing, in a bid to overcome housing shortfalls.

As feared, it appears that the judgment is resulting in conflicting decisions. Following the Supreme Court’s judgment, whether a policy is a housing supply policy or not should be of less relevance than before. Local authorities and inspectors should be balancing the need for housing against development plan policies and applying weight accordingly, in a bid to boost the supply of housing. Planning by appeal looks set to continue as local authorities resisting development will seek to follow the “Gladman case” approach rather than the “Keigar case” one but the main arguments that appellants should be raising now are not whether or not a policy is a housing supply policy, but that the policy should be given substantially reduced weight.