Supreme Court rules on Para 49 of the NPPF

Posted by Sara Hanrahan on
Supreme Court rules on Para 49 of the NPPF
On 10 May the Supreme Court issued its decision dismissing both appeals by Suffolk Coastal District Council and Cheshire East Borough Council.  The appeals related to the proper interpretation of the hotly contested paragraph 49 of the NPPF and its relationship to paragraph 14 which deals with the "presumption in favour of sustainable development".  

The interpretation of paragraph 49 has been the subject of a huge amount of case law and whether a "narrow" or "wide" approach should be taken in relation to what is meant by "relevant policies for the supply of housing" within the context of a deliverable five-year housing supply.   The judges carefully considered both approaches but ruled unanimously that the correct approach is the "narrow" one.   Lord Carnwath  attached considerable weight to the use of the word "for" in limiting the category of policies intended to be encompassed  to just those dealing with the numbers of housing and that it did not extend to other policies that might restrict housing supply such as green gap or open countryside protections.

On this analysis, therefore, the decision-maker is required to first decide whether the Council has been able to demonstrate a five- year supply of deliverable sites or not.  If they fail to do so then the relevant policies specific to such deliverability should be considered to be out of date and although they still "retain their statutory force" the decision-maker must then take into account the general provisions in paragraph 14 as a material consideration and this is where the wider view of the development plan policies comes into play.  The starting point within paragraph 14 is "tilted" in favour of sustainable development  but this presumption needs to be balanced against any adverse impacts.  Whether the adverse impacts, such as encroachment on the greenbelt, outweigh the benefits of grant of permission needs to be assessed against not just the policies of the NPPF but also development plan policies.

The decision also helpfully clarifies the legal status of the NPPF as being a guidance document only and that it should not be treated "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".  As a guidance document its weight constitutes a material consideration and "it cannot, and does not, purport to displace the primacy given by the statute and policy to the statutory development plan".

Further useful comments are made as to the role of the judiciary in policy interpretation.  Lord Carnwath and Lord Gill both emphasise that the issue of interpretation of policy is a question for the courts but that the application of planning policy and guidance is for the decision-maker.

This judgment has been generally welcomed by both developers and councils as it brings an end to the uncertainty that has previously surrounded the correct interpretation of paragraph 49, and its connection with paragraph 14.  On a wider scale, the decision has also re-positioned the development plan  back securely on the throne of planning policy precisely at a point in time when its long lived reign to date seemed in danger of being usurped.

Click here to read the full decision. 

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Sara specialises in urban redevelopment and infrastructure projects, particularly advising in relation to compulsory purchase and affordable housing schemes. She also has niche specialism acting for high net worth individuals.

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