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Supreme Court hands down judgment in Hopkins Homes

DATE: 10 May 2017

The Supreme Court handed down judgment this morning in the joined appeals of Suffolk Coastal District Council v Hopkins Homes Ltd UKSC 2016/0076 and Richborough Estates Partnership LLP v Cheshire East Borough Council UKSC 2016/0078.

The appeals turned on the proper interpretation of paragraph 49 of paragraph 49 of the National Planning Policy Framework ("NPPF"), and particularly on the meaning of "relevant policies for the supply of housing".

Lord Carnwath gave the leading judgment. He departed from the broad approach that the Court of Appeal had taken to the meaning of paragraph 49 of the NPPF, finding that:

“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.”

However, Lord Carnwath continued:

“The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47 [of the NPPF]. 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 over-restrictive 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.”

In consequence, the Court found that a non-housing policy which has the effect of restricting the supply of housing (e.g. in relation to the Green Belt or Areas of Outstanding Natural Beauty) is not deemed to be out-of-date by paragraph 49 of the NPPF. Nonetheless, Lord Carnwath held that “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”.

Both appeals were dismissed. The judgment is available here.

Christopher Lockhart-Mummery QC and Zack Simons acted for the successful Respondent, Hopkins Homes. They were instructed by Trevor Ivory of DLA Piper.

Christopher and Zack will be discussing the implications of this judgment at the forthcoming Chambers seminar on 19th June. Click here for details.