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Section 6 – Delivering a wide choice of high quality homes

NPPF 47-55

 

NPPF 47


Cotswold DC v SSCLG
[2013] EWHC 3719 (Admin), Lewis J

Regarding the general purpose of NPPF 47, Lewis J said [46]:

“Paragraph 47 is to be interpreted, and applied, having regard to its purpose and context. The purpose of the Framework is to set out the Government's view of what constitutes sustainable development in England. That includes providing the supply of housing required to meet the needs of present and future generations: see paragraphs 6 and 7 of the Framework. Section 6 of the Framework is concerned with the government's view of how local planning authorities should deliver appropriate housing. The immediate context of paragraph 47 of the Framework is therefore concerned with what local planning authorities should do to boost significantly the supply of housing, as appears from the opening words of paragraph 47. The first bullet point is concerned with ensuring that Local Plans meet the full, objectively assessed needs for market and affordable housing. That is, it is dealing with the assessment of need for the period after the end of the Structure Plan and during the currency of the next Local Plan (to cover an appropriate time scale, preferably a period of 15 years: see paragraph 157 of the Framework). The second bullet point is concerned to ensure that local planning authorities identify a “supply of specific deliverable sites sufficient to provide five years worth of housing” with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market. Where there has been “a record of persistent under delivery of housing” local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land.”

Specifically on the question of persistent under-supply, Lewis J held [47]:

“In the context of paragraph 47, the reference to “persistent” under delivery of housing is a reference to a state of affairs, under delivery of housing, which has continued over time. A decision-maker would need to have regard to a reasonable period of time measured over years rather than looking at one particular point, to ensure that the situation was one of persistent under delivery rather than a temporary or short lived fluctuation. The precise period of time would be a matter for the judgment of the decision-maker. There has to be a “record” of under delivery of housing. That points towards assessing previous performance (i.e. the performance in the period prior to the expiry of the Structure Plan and before the new Local Plan should have come into force). The need to establish a record of under delivery indicates there will need to be some measure of what the housing requirements were, and then a record of a failure to deliver that amount of housing persistently, i.e. a failure continuing over a relevant period of time. A decision-maker would be entitled to take the figures in the previous Structure Plan as a measurement of what the housing requirement was in order to assess whether there has been a record of persistent under delivery of housing. However, the requirement is that there has been a record of persistent under delivery of housing (not a failure to meet the targets set out in the Structure Plan). It would, in my judgment, be open to a decision maker to identify an appropriate measure of housing needs either separately from the Structure Plan or as a means of reinforcing conclusions drawn on the basis of the Structure Plan.” 

When assessing whether there was a record of persistent under-supply, five years was a sufficient period to consider. The NPPF looked forward for five years, so it was reasonable to look back for five years. An inspector can also take into account that there has been under-delivery with respect to a structure plan which itself understated the need for housing [49].


Wainhomes Holdings Ltd
[2013] EWHC 597 (Admin), Stuart-Smith J

Lisa Busch appeared for the Secretary of State

Stuart-Smith J considered in detail Footnote 11 of the NPPF, which relates to NPPF 47. His Lordship stated at [34]:

i) It is common ground that planning permission is not a necessary prerequisite to a site being “deliverable”. This must be so because of the second sentence of Footnote 11 and because it would be quite unrealistic and unworkable to suggest that all of the housing land supply for the following five year period will have achieved planning permission at the start of the period;

ii) The parties are agreed that a site which is, for example, occupied by a factory which has not been derequisitioned, or which is contaminated so that housing could not be placed upon it, is not “available now” within the meaning of the first sentence of Footnote 11. However, what is meant by “available now” is not explained in Footnote 11 or elsewhere. It is to be read in the context that there are other requirements, which should be assumed to be distinct from the requirement of being “available now”, though there may be a degree of overlap in their application. This suggests that being available now is not a function of (a) being a suitable location for development now or (b) being achievable with a realistic prospect that housing will be delivered on the site within five years and that development of the site is viable. Given the presence of those additional requirements, I would accept Ms Busch's submission for the Secretary of State: “available now” connotes that, if the site had planning permission now, there would be no other legal or physical impediment integral to the site that would prevent immediate development;

iii) Questions as to the viability of the proposed development or, for example, whether a developer had been identified or was in a position immediately to start work, would go to the question whether there was a realistic prospect of delivery within five years, but not to the question whether the site was available now. For the same reason, the fact that a site does not “offer a suitable location” does not affect whether or not it is “available now”, suitability of the location being a separate requirement;

iv) Where sites without planning permission are subject to objection, the nature and substance of the objections may go to the question whether the site offers a suitable location; and they may also determine whether the development is achievable with a realistic prospect that housing will be delivered on the site within five years. Even if detailed information is available about the site and the objections, prediction of the planning outcome is necessarily uncertain. All that probably need be said in most cases is that where sites do not have planning permission and are known to be subject to objections, the outcome cannot be guaranteed. Accordingly, where there is a body of sites which are known to be subject to objections, significant site specific evidence is likely to be required in order to justify a conclusion that 100% of all those sites offer suitable locations and are achievable with a realistic prospect that they will be delivered within five years;

v) For similar reasons, where sites are in contemplation because of being included in an emerging policy document such as the eWCS, and the document is still subject to public examination, that must increase the lack of certainty as to outcome. That is implicitly recognised by [216] of NPPF which requires decision-takers to “give weight to relevant policies in emerging plans according to: the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given)” and to “the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given)….”


Gladman Development Ltd v Wokingham BC
[2014] EWHC 2320 (Admin), Lewis J

“Where a development plan document is intended to deal with the assessment of the need for housing, then, the provisions of the Framework material to housing need will be a material consideration. A local planning authority dealing with the question of the amount of housing needed for its area will need to have regard to paragraph 47 of the Framework. The provisions governing a local plan – that is a development plan document - dealing with the assessment of housing need would have to have regard to paragraphs 158 and 159 of the Framework. Any examination of that local plan, that is that particular development document, would need to have regard in that context to paragraph 182 of the Framework.

Properly read, however, the Framework does not require a development plan document which is dealing with the allocation of sites for an amount of housing provision agreed to be necessary to address, also, the question of whether further housing provision will need to be made.” [64]-[65]


R (Smech Properties Limited) v Runnymede BC
[2015] EWHC 823 (Admin), Patterson J

Christopher Katkowski QC and Alistair Mills appeared for the Claimant

Nathalie Lieven QC and Heather Sargent appeared for the Defendant

Reuben Taylor QC appeared for the Interested Parties

“I entirely accept, as the defendant submits, that the annual report on housing, required under paragraph 47 of the NPPF, will be updated for a planning application or planning appeal so that the decision maker is able to take the decision before him on the most up to date evidence.” [89]


Exeter City Council
[2015] EWHC 1663 (Admin), Hickinbottom J

Stephen Whale appeared for the Claimant

Sasha Blackmore appeared for the Secretary of State

Charles Banner appeared for the Second and Third Defendants

“Paragraph 47 reflects two different concepts, namely the “policy off” objectively assessed housing need and the “policy on” housing requirement, which I have explained above (see paragraph 10). It is clear that the policy off need and policy on requirement will be the same if there are no policies that impact upon the policy off figure. In this case, none was suggested. The words in paragraph 47 omitted by the Inspector ­ about which Mr Whale makes complaint ­ therefore had no relevance in this case. The Inspector did not arguably err by omitting (and/or not taking into account the import of) words in the NPPF that were immaterial to the issues before her.” [35]

 

St Modwen Developments Ltd [2016] EWHC 968 (Admin), Ouseley J

‘I can see no planning rationale for depriving the planning authority and Inspector of the opportunity to reach a judgment on the general criteria for deliverability on sites in an emerging local plan. Planning permission clearly goes to the issue of deliverability because a site with permission is suitable for housing development, and a barrier to delivery has been removed. But it cannot sensibly be argued that planning permission is required now for a site to be realistically deliverable over the next five years.’ [20]

‘Mr Young based his argument on the interpretation of “available now”, but that phrase is obviously more apt to deal with ownership constraints, the starting constraints to development, than it is to deal with the grant of planning permission, in view of the other express components of deliverability. However this was no accidental focus on the wrong words to convey his point. “Availability now” cannot be demonstrated by showing that development on a site is “achievable with a realistic prospect that housing will be delivered on the site within five years…” But that last phrase covers an important aspect of “deliverability”. The planning judgment as to “deliverability” can clearly be made in respect of sites which do not have planning permission now, but can reasonably be expected to receive it so as to enable housing to be built on them within the next five years. These would include allocations in an emerging local plan, once assessed for the purpose of inclusion in the housing land supply, or indeed in an adopted plan. Mr Young had to exclude them; so he had to base his argument, to give it any bite, on the inappropriate phrase “available now”, because of the effect of the word “now”. “Now” means “now”, and I accept that “available now” looks to the present availability of the land in question. There is nothing to suggest that the Inspector did not understand that. But for the reasons she gave, his argument that that phrase covers the grant of planning permission and requires planning permission to have been granted “now”, lacks a sound planning basis, and that is the first reason why it is wrong.’ [21]

The PPG can be relevant to the interpretation of the NPPF [36].

‘Considerations of specific burdens of proof on specific aspects are wholly inappropriate for evaluative planning decisions of this nature.’ [46]

‘The assessment of housing land supply does not require certainty that the housing sites will actually be developed within that period. The planning process cannot deal in such certainties. The problem of uncertainty is managed by assessing “deliverability” over a five year period, re-assessed as the five year period rolls forward.’ [47]

R (St Albans City and District Council) [2017] EWHC 1751 (Admin), Sir Ross Cranston

Matthew Reed QC appeared for the Claimant Council

“…paragraph 47 NPPF says nothing about the duty to cooperate. Rather, the NPPF makes clear that compliance or otherwise with the duty to cooperate can feed into a judgement about effectiveness and soundness of a plan.” [59]

               

NPPF 47-49


Stratford upon Avon DC v Secretary of State for Communities and Local Government
[2013] EWHC 2074 (Admin); [2014] JPL 104, Hickinbottom J

James Maurici QC and Richard Turney appeared for the Defendant

Hickinbottom J summarised the effect of NPPF 47-49:

“This guidance, which was published only shortly before the Inspector’s inquiry and report in this case, informs the relevant housing requirement to be used for both the strategic plan-making function of a local planning authority when (e.g.) preparing a Local Plan Review, and the function of decision-making in respect of a particular planning application when it informs the approach of the decision-maker. In the latter case, it is particularly relevant in the absence of a demonstration of a particular level of supply of deliverable housing sites. If the authority cannot demonstrate a five-year plus buffer supply of housing land at the time of a planning application for housing development, then that weighs in favour of a grant of permission. In particular, in those circumstances: (i) relevant housing policies are to be regarded as out-of-date, and hence of potentially restricted weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. That presumption is, again, not irrebuttable: it may be rebutted by other material considerations.” [13]

“Of course, an assessment of future housing requirements is essential for the purposes of the development plan. But, equally, the housing requirement position must be considered when a planning application is made for housing development. First, such consideration is required by NPPF paragraph 47-49, because, if the supply is less than five years plus buffer, then that favours grant for the reasons given above (see paragraphs 11-12): there is a presumption in favour of granting permission.” [37]

“In coming to [a] necessary assessment in the context of a specific planning application/appeal, the Inspector was of course not binding the Council as to the relevant housing requirement so far as the development plan (now, in the form of the Council's Core Strategy) was concerned. Indeed, the Inspector made it clear that he understood the Council's role in considering housing supply in the context of the Core Strategy, and was not seeking to assume that role.” [39]

“In deciding on the housing requirement for the district on the evidence before him and for the purposes of the particular planning application he was considering, the Inspector was not seeking to (and did not in fact) bind the Council, or another inspector or the Secretary of State, as to the housing requirement figure in other applications or appeals. The relevant housing requirement figure in another case would depend upon a separate exercise of judgment on the basis of the evidence available in that other case, at the time of the relevant decision, including relevant policy documents such as the local Core Strategy at whatever stage that process had reached.” [42]


R (Hampton Bishop Council) v Herefordshire Council
[2013] EWHC 3947 (Admin), Hickinbottom J

Sasha White QC and Andrew Byass appeared for the Claimant

“This guidance, which became immediately effective from March 2012, is not only relevant to the housing requirement to be used for strategic plan-making by local planning authorities, but informs the approach of decision-makers when determining a particular planning application. In the latter case, it is particularly relevant when the local authority cannot demonstrate a particular future supply of deliverable housing sites. If the authority cannot demonstrate a five year plus buffer supply of housing land at the time of a planning application for housing development, then that affects local policies as to how that need can be met: it weighs in favour of a grant of permission. In particular, in those circumstances, (i) relevant development plan housing policies are to be regarded as out-of-date, and hence of potentially less weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. That presumption is, again, of course not irrebuttable: it may be rebutted by other material considerations.” [125]


Hunston Properties Ltd
[2013] EWCA Civ 1610; [2014] JPL 599, Kay and Ryder LJJ, Sir David Keane

Matthew Reed appeared for the Council

A leading early case on paragraph 47 and Housing Land Supply, in circumstances where the proposed development would constitute inappropriate development in the Green Belt. The inspector noted that it should not be permitted except in very exceptional circumstances. 

[6]  It seems clear, and is not in dispute in this appeal, that such a Local Plan could properly fall short of meeting the “full objectively assessed needs” for housing in its area because of the conflict which would otherwise arise with policies on the Green Belt or indeed on other designations hostile to development, such as those on Areas of Outstanding Natural Beauty or National Parks.

Sir David Keene set out the issue between the parties [22]:

Neither party before us sought to take issue with the inspectors findings as to the supply of housing land over the five year period in this district. But, as will be evident from the earlier passages in this judgment, the inspector found that there was no shortfall in the supply because she regarded it as necessary to identify a housing requirement figure which reflected the constraints on built development in the district generally which resulted from the extensive areas of Green Belt there. The best she felt she could do was to adopt the earlier East of England Plan figure which, though in a revoked plan, sought to take account of such constraints. Was she entitled to do so?

 His Lordship held at [25]-[26]:

I see the force of these arguments, but I am not persuaded that the inspector was entitled to use a housing requirement figure derived from a revoked plan, even as a proxy for what the local plan process may produce eventually. The words in paragraph 47(1), “as far as is consistent with the policies set out in this Framework” remind one that the Framework is to be read as a whole, but their specific role in that sub-paragraph seems to me to be related to the approach to be adopted in producing the Local Plan. If one looks at what is said in that sub-paragraph, it is advising local planning authorities:

“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 this Framework.”

That qualification contained in the last clause quoted is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs. The needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure.

Moreover, I accept Mr Stinchcombe QC’s submissions for Hunston that it is not for an inspector on a Section 78 appeal to seek to carry out some sort of local plan process as part of determining the appeal, so as to arrive at a constrained housing requirement figure. An inspector in that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the Section 78 appeal. I appreciate that the inspector here was indeed using the figure from the revoked East of England Plan merely as a proxy, but the government has expressly moved away from a “top-down” approach of the kind which led to the figure of 360 housing units required per annum. I have some sympathy for the inspector, who was seeking to interpret policies which were at best ambiguous when dealing with the situation which existed here, but it seems to me to have been mistaken to use a figure for housing requirements below the full objectively assessed needs figure until such time as the Local Plan process came up with a constrained figure.

On the facts, the Inspector was obliged to find a housing shortfall. However, the weight to be given to such a housing shortfall (and whether it constituted ‘very special circumstances’ for the purposes of NPPF 87) was a matter of planning judgment.

R (Smech Properties Ltd) v Runnymede Borough Council [2015] EWHC 823 (Admin), Patterson J

Christopher Katkowski QC and Alistair Mills appeared for the Claimant

Nathalie Lieven QC and Heather Sargent appeared for the Council

Reuben Taylor QC appeared for the Interested Parties

“The starting point for an assessment of the housing land situation is thus the full objectively assessed housing need as a requirement until a Local Plan process comes up with a constrained figure.” [88]

York City Council v SSCLG
[2014] EWHC 231 (Admin), HHJ Behrens

Stephen Whale appeared for the Secretary of State

Considered an Inspector’s conclusion that the Council’s “first priority” was to achieve an adequate housing land supply, supported by the NPPF. HHJ Behrens found this to be a matter of planning judgment, not open to challenge. [61]


Tewkesbury BC v SSCLG
[2013] 286 EWHC (Admin), Males J

James Maurici QC appeared for the Secretary of State

The absence of a five-year housing land supply is not determinative, but it can, as a matter of planning judgment, be viewed as the most important material consideration. [53]

The fact that a Regional Strategy was not going to be implemented “does not necessarily invalidate what it has to say about the projected need for housing land.” [54]


South Northamptonshire Council v Secretary of State for Communities and Local Government
[2014] EWHC 573 (Admin), Ouseley J

Stephen Whale appeared for the Secretary of State

The Claimant argued that an inspector was obliged in law to ignore the RSS in its entirety, along with housing supply figures derived from the RSS growth strategy. [22]

Ouseley J rejected this approach.

“In my judgment the crucial point to take from the Hunston case is how to interpret paragraph 47 (i) of the NPPF, relating the requirement for a full objective assessment of housing needs in the housing market area to the subsequent qualification that that be done so far as is consistent with the policies in the Framework, before the Local Plan is produced, reconciling or balancing the two aims.” [30]

“Before that happens through the Local Plan, the full objectively assessed housing needs of the area are not subject to the constraints of policy. Those constraints fall for consideration later on in the development control decision-making process, as the Court of Appeal pointed out; for example in a Green Belt case, the question will be whether a shortfall of housing land supply against those fully assessed needs constitutes very special circumstances so as to permit inappropriate development in the Green Belt. The question is not whether the Green Belt constrains the assessment, but whether the Green Belt constrains meeting the needs assessed. Once the Local Plan is adopted, it is the constrained needs in the Plan which are to be met. [31]

“A revoked RSS is not a basis for the application of a constraint policy to the assessment of housing needs, because it has been revoked and cannot be part of the Development Plan. The same would be true of an out of date Local Plan which did not set out the current full objectively assessed needs. Until the full, objectively assessed needs are qualified by the policies of an up to date Local Plan, they are the needs which go into the balance against any NPPF policies. It is at that stage that constraints or otherwise may apply. It may be problematic in its application, but that is how paragraph 47 works. [32]

“In principle, what is said about full objectively assessed housing needs must apply where the revoked RSS figure was based on growth projections or policies which went beyond a full objective assessment of housing needs. In practice, it may be more difficult to judge the extent to which those objectively assessed needs in the housing market include or exclude a former growth strategy in a revoked or out of date plan. But that remains a planning judgment. [33]

“The first question for the Inspector in this case was what was the best figure for the full objectively assessed housing needs in the housing market area. Here, there was a particular difficulty because there was no up to date local plan; indeed, except for saved policies, it had expired some six years ago. The emerging JCS suffered from sufficient weakness and uncertainty that it could not be regarded as weighty, let alone as containing the full objectively assessed housing needs figure. The Inspector had the RSS figure, objectively assessed, albeit not very up to date. … [34]

“The Council provided no evidence of the extent to which the RSS figure for South Northamptonshire had been inflated, if at all, by the former growth strategy. … So it is difficult to see what basis the Inspector could have had for treating the RSS figure as legally irrelevant, simply because the RSS had been revoked and the underlying growth strategy no longer applied. Although there is the potential for an error of law in this respect, I am satisfied that in fact there was no error of law.” [35]

“The Inspector was entitled to regard it as undesirable for a shortfall in earlier years to be left till later in the plan period to be made good, and to hold that it should be made good earlier. This was a planning judgment to be made in the light of paragraph 47 NPPF, which looked for a significant and immediate boost to housing supply.” [36] 


South Northamptonshire Council v Secretary of State for Communities and Local Government
[2014] EWHC 570 (Admin), Ouseley J

Stephen Whale appeared for the Secretary of State

Ouseley J considered a further challenge on equivalent grounds.

“The real question however is whether, in using the RSS figures and the evidence base as the best source for current objectively assessed housing needs, the Inspector erred in law. Her task was to find a source for such a figure. She only had two, the emerging JCS favoured by the Council and the RSS favoured by the developer. The former she found was of limited weight for perfectly sustainable reasons. The latter, although drawn from the revoked plan still had an evidence base. I see nothing in the Hunston decision which requires the RSS to be totally expunged from history. It only decides that revoked policies cannot be used to perform the task which it is for the local plan to perform, that is to adjust the full objectively assessed housing needs by reference either to policy constraints or by the same token to requirements not arising in the housing market area. The language of paragraph 47 is not confined to the effect of constraint policies.” [17]

“But the sting of Hunston here depends on whether the figures used in the RSS for South Northamptonshire, excluding the part near the Northampton boundary, were tainted by now revoked growth policies. …” [18]


Zurich Assurance Ltd v Winchester CC
[2014] EWHC 758 (Admin), Sales J

“WCC [Winchester CC] put forward the Core Strategy as a document which would form the part of its Local Plan which would satisfy the requirements of the first bullet point in paragraph 47 of the NPPF, but it was not required to produce and did not attempt to produce a Core Strategy that itself satisfied all the other requirements of paragraph 47. Under paragraph 47 of the NPPF, WCC had a choice about how to satisfy those other requirements within the various development plan documents it would eventually adopt. It could, if it chose, include measures to satisfy those requirements in a core strategy document; but it could also choose to include them in other plan documents which would also be components of the Local Plan. In this case, WCC was expecting to produce other development plan documents below the level of strategic planning in the Core Strategy, which would have more detail and which would be developed to meet the further requirements in paragraph 47 of the NPPF. In my view, that was entirely proper and WCC's choice not to include such measures in the Core Strategy did not involve any failure to comply with paragraph 47 of the NPPF.” [46]


Bloor Homes East Midlands
Limited v Secretary of State for Communities and Local Department [2014] EWHC 754 (Admin), Lindblom J

James Maurici QC appeared for the Secretary of State

“The relevant passage in the NPPF is in paragraph 47, which advocates the use of either a buffer of 5% “to ensure choice and competition in the market for land” or a buffer of 20%, if there has been “a record of persistent under delivery of housing” in the local planning authority's area. The purpose of adding a 20% buffer in those circumstances is not only to ensure choice and competition in the land market but also “to provide a realistic prospect of achieving the planned supply”. The NPPF does not go further than that in what it says about the choice of the appropriate buffer. It does not preclude the use of a buffer of less than 5% or more than 20% or somewhere between those two levels. It leaves that to the discretion of the decision-maker.” [121]

Whether under-delivery is “persistent” is a matter for the decision-maker. [122] 


Islington LBC v Mayor of London
[2014] EWHC 751 (Admin), Lang J

Nathalie Lieven QC and Heather Sargent appeared for the Claimant

Paul Brown QC and Graeme Keen appeared for the Defendant

Paragraph 47 does not “speak either for or against local rent caps.” [28]


Gallagher Homes Ltd v Solihull DC
[2014] EWHC 1283 (Admin), Hickinbottom J

Christopher Lockhart-Mummery QC and Zack Simons appeared for the Claimant

Paragraph 47 differs from PPS3 in two important ways: it abandons a top-down approach to planning, in line with the principles behind the Localism Act 2011. Secondly, it puts more weight on the aim of increasing the supply of housing. Full objectively assessed housing needs are a material consideration of particular standing. [31]

The reasoning in Hunston applies to plan-making.

Approaching a housing provision figure from the available housing supply (a ‘bottom up’ approach), is the wrong way round. [53]

Full housing needs must be assessed. All material considerations (including need) cannot simply all be weighed together. It is not sufficient to determine the maximum available supply, and constrain housing provision targets to that figure. The balancing exercise cannot be performed without the actual need [94]


Gallagher Homes Ltd v Solihull DC
[2014] EWCA Civ 1610, Laws, Patten and Lloyd LJJ

Christopher Lockhart-Mummery QC and Zack Simons appeared for the Claimant

Christopher Katkowski QC appeared for the Council

“[Hunston] is binding authority for the proposition that the making of an [Objective Assessment of Needs is an exercise which is prior to, and separate from, the application to that assessment of the impact of other relevant NPPF policies.” [10]

“I accept that there are aspects of the NPPF which reflect earlier planning policy. But there are also significant changes. They include then requirement in paragraph 47 to “boost” housing supply “significantly”, the formulation in paragraph 47 “to ensure that their Local Plan meets the full, objectively assessed needs…” (my emphasis), and the treatment of “soundness” in NPPF paragraph 182…” [14]

“The NPPF indeed effected a radical change. It consisted in the two-step approach which paragraph 47 enjoined. The previous policy’s methodology was essentially the striking of a balance. By contrast paragraph 47 required the OAN to be made first, and to be given effect in the Local Plan save only to the extent that that would be inconsistent with other NPPF policies.” [16]


Satnam Millennium Limited v Warrington Borough Council
[2015] EWHC 370 (Admin)

Christopher Lockhart-Mummery QC appeared for the Claimant

It is sufficient for a local planning authority preparing a local plan to take the residue from a wider Housing Market Assessment, even where the figure was calculated before the NPPF. [28(vi)]


Phides Estates (Overseas) Limited v SSCLG
[2015] EWHC 827 (Admin), Lindblom J

Richard Moules appeared for the Secretary of State

Paul Brown QC appeared for the Third Defendant

“As Mr Paul Brown QC submits on behalf of Mr Plumstead, government policy in paragraph 49 of the NPPF makes the ability of the local planning authority to demonstrate a “five-year supply of deliverable housing sites” the test by which the decision-maker ascertains whether or not “[relevant] policies for the supply of housing” are “up-to-date”. It is the corollary of the policy in paragraph 47 that authorities must be able at all times to identify a supply of “specific deliverable sites sufficient to provide five years worth of housing against their housing requirements”, with the appropriate buffer. So the critical concept in identifying the requisite five-year supply of housing land, and thus the critical concept in judging whether relevant policies for the supply of housing are up to date, is the requirement for additional housing.” [47]

Edward Ware Homes Ltd [2016] EWHC 103 (Admin), Holgate J

“I accept the Claimant's submissions that the NPPF and the Core Strategy require the demonstration of a 5 year supply of housing land for the whole of the area of a local planning authority (or the Housing Market Area). But it does not follow that if such a supply cannot be demonstrated, then it is legally irrelevant for a decision-maker to consider the distribution of housing land supply in parts or sub-areas of the district, whether over 5 years or the plan period.” [36]

Hopkins Homes Ltd [2017] UKSC 37, Lord Neuberger of Abbotsbury PSC, Lord Clarke of Stone-cum-Ebony, Lord Carnwath, Lord Hodge JJSC, Lord Gill

Christopher Lockhart-Mummery QC and Zack Simons appeared for Hopkins Homes Ltd 

“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 five-year 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 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. 

60 The Court of Appeal was therefore right to look for an approach which shifted the emphasis to the exercise of planning judgment under paragraph 14. However, it was wrong, with respect, to think that to do so it was necessary to adopt a reading 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.” (Lord Carnwath JSC)

 

St Modwen Developments Ltd [2016] EWHC 968 (Admin), Ouseley J

‘I agree with the Inspector that the NPPF does not require housing needs to be assessed always and only by reference to the area of the development control authority.’ [74]

 

NPPF 49


William Davis Ltd v Secretary of State for Communities and Local Government
[2013] EWHC 3058 (Admin) Lang J

James Maurici QC appeared for the Secretary of State

NPPF 49 did not apply to a local plan policy, since it did not relate to the supply of housing, even though it had the potential to restrict housing development.

It is an error for NPPF 49 to be applied to policies which do not relate to housing [47]


Cotswold DC v SSCLG
[2013] EWHC 3719 (Admin), Lewis J

Policies which restrict development, including housing development, can be disapplied to the extent that they restrict housing development. Such policies can be ‘policies for the supply of housing’, even if they restrict the supply of housing. [72]


South Northamptonshire Council v Secretary of State for Communities and Local Government
[2013] EWHC 4377 (Admin), Lewis J

Stephen Whale appeared for the Secretary of State

“Secondly, there would still be the question, even if paragraph 24 of the decision was intended to apply to EV2 and G2, as to whether or not they were housing supply policies for the purposes of paragraph 49 of the National Framework. On the one hand, there are policies such as the Local Plan Policy 19 that was in force in Cotswold District Council v Secretary of State for Communities and Local Government & Anor [2013] EWHC 3719 (Admin). That policy dealt with development outside development boundaries and dealt with new-builds and other matters if the authority were to allow housing outside the development boundary area. The policy applied to all developments, housing and other developments, and in Cotswold the inspector and the court considered that, to the extent that that policy restricted housing development, it was a housing supply policy for the purposes of paragraph 49.  

At the other end of the spectrum, you have the kind of green wedge policy that arose in William Davis Ltd v Secretary of State for Communities and Local Governments & North West Leicestershire District Council [2013] EWHC 3058 (Admin). That was a policy that said the undeveloped character of a particular area should effectively be preserved and development would not be permitted. Lang J in that case considered that that policy was not a housing supply policy for the purposes of paragraph 49 of the Framework for the reasons that she gave at paragraph 47 of her judgment.  

Turning to EV2 and G2 here, G2 is a policy that says:

“Provision will be made for new development to be concentrated in Towcester, Brackley and closely related to the Northampton Borough boundary. New development will be limited in the villages and severely restrained in the open countryside.”

In my judgment, that is a housing supply policy within the meaning of paragraph 49 of the National Framework. It applies to residential development and other forms of development, but to the extent that it seeks to restrict housing development and to concentrate it in Towcester, Brackley and other areas, it is on the Cotswold District Council side of the line and falls within the scope of paragraph 49 of the National Framework.  

Policy EV2 is somewhere between the Cotswold case and the Davis case. That policy says that “planning permission will not be granted for development in the open countryside”, although certain exceptions are then made.” [31-34] 


Langton Homes Ltd v Secretary of State for Communities and Local Government
[2014] EWHC 487 (Admin), Foskett J

Sasha Blackmore appeared for the Secretary of State

Foskett J rejected an argument by the Claimant to the effect that an Inspector was wrong to conclude that the policies of a Local Plan were up to date, just because a 5-year housing land supply could be shown, thus neutralising the presumption in favour of sustainable development in NPPF 14.

“The inter-relationship between paragraph 49 and paragraph 14 of the NPPF will depend upon the circumstances of the individual planning application judged by reference to the local planning context as it relates to the NPPF. A demonstrable lack of a 5-year supply of housing land might well demand the more forceful application of the presumption referred to in paragraph 14, whereas an alleged shortfall that cannot be demonstrated will not necessarily neutralise the application of that paragraph, but will demand less of an emphasis upon it depending on other material considerations. But whether that analysis is or is not correct, what the Inspector decided here was that the 5-year supply of housing land was demonstrated (or at least the converse was not demonstrated) and that, accordingly, she was entitled (and indeed obliged) to give some weight to the existing policies … It was for her to give such weight to this as she thought fit and it is not for the court to interfere with that assessment.” [61]


South Northamptonshire Council v Secretary of State for Communities and Local Government
[2014] EWHC 573 (Admin), Ouseley J

Stephen Whale appeared for the Secretary of State

Whether or not a local plan policy is a ‘housing’ policy for the purposes of NPPF 49 is a matter of planning judgment, so long as the Inspector directs themselves correctly as to the scope of NPPF 49. [48]

The Inspector had not erred:

“That phraseology [policy “for the supply of housing”] is either very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing, ignoring any other policies dealing generally with the location of development or areas of environmental restriction, or alternatively it requires a broader approach which examines the degree to which a particular policy generally affects housing numbers, distribution and location in a significant manner. [46]

“It is my judgment that the language of the policy cannot sensibly be given a very narrow meaning. 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. Such policies are the obvious counterparts to policies designed to provide for an appropriate distribution and location of development. They may be generally applicable to all or most common forms of development, as with EV2, stating that they would not be permitted in open countryside, which as here could be very broadly defined. Such very general policies contrast 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.” [47]


Grand Union Investments Ltd v Dacorum BC
[2014] EWHC 1894 (Admin), Lindblom J

Christopher Katkowski QC and Robert Walton appeared for the Claimant

NPPF 14, along with NPPF 49, provide no comfort to Local Planning Authorities which allow their development plans to become stale. [78]


Hopkins Homes Ltd
[2015] EWHC 132 (Admin), Supperstone J

Christopher Lockhart-Mummery QC appeared for the Claimant

“I accept Mr Lockhart-Mummery's submission that the error made by the Inspector was not so much a failure to give reasons, as a misinterpretation and misapplication of paragraph 49 of the NPPF in relation to policies in the Local Plan. The sole judgment to which the Inspector had regard was Davis in respect of which he noted “it was held that paragraph 14 of the Framework only applies to development which has been found to be sustainable” (DL6). However none of the later cases followed the approach adopted by the learned judge in Davis . I agree with Mr Lockhart-Mummery that SP29 is the equivalent to Policy EV2 in Barwood Land . Following the analysis of Ouseley J in that case, with which I agree, I consider that the Inspector did misinterpret NPPF paragraph 49 in the present case.” [38]


Crane v Secretary of State for Communities and Local Government
[2015] EWHC 425 (Admin), Lindblom J

Nathalie Lieven QC appeared for the Secretary of State

“As Ms Lieven and Mr Smyth submit, neither paragraph 49 of the NPPF nor paragraph 14 prescribes the weight to be given to policies in a plan which are out of date. Neither of those paragraphs of the NPPF says that a development plan whose policies for the supply of housing are out of date should be given no weight, or minimal weight, or, indeed, any specific amount of weight. One can of course infer from paragraph 49 of the NPPF that in the Government's view the weight to be given to out of date policies “for the supply of housing” will normally be less, often considerably less, than the weight due to policies which provide fully for the requisite supply. As I have said, Mr Hill points, for example, to an expression used by Males J. in paragraph 20 of his judgment in Tewkesbury Borough Council – “little weight” – when referring to “relevant policies” that are “out of date”. In Grand Union Investments Ltd. (at paragraph 78) I endorsed a concession made by counsel for the defendant local planning authority that the weight to be given to the “policies for housing development” in its core strategy would, in the circumstances of that case, be “greatly reduced” by the absence of a five-year supply of housing land. However, the weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, or could it be, fixed in the case law of the Planning Court. It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.” [71]


Cheshire East Borough Council
[2015] EWHC 410 (Admin), Lang J

“The immediate context of paragraph 49 suggests that the Minister intended to refer to policies for the supply of housing rather than to any policy which may have the indirect effect of restricting housing development, such as a Green Gap policy. Section 6 of the NPPF is headed “Delivering a wide choice of high quality homes”. Paragraph 47 sets out the steps local planning authorities should take “to boost significantly the supply of housing ”, by inter alia ensuring that the policies in their Local Plan meet the full objectively assessed needs for housing in their area. The reference in paragraph 49 to the consequences of a failure to demonstrate five-year supply of deliverable housing sites follows on directly from the duty in paragraph 47 “to identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing ”. In paragraph 47 the Minister is exhorting local planning authorities to adopt policies for the supply of housing, sufficient to provide five years worth of housing, and in paragraph 49 he sets out the consequences of a failure to comply with this exhortation.

I understand and endorse Ouseley J's reasons for giving paragraph 49 a broader purposive interpretation. However, in my view, it is not open to inspectors to disregard the distinction he drew between general policies to restrict development and those policies designed to protect specific areas or features, as this goes to the heart of the meaning and purpose of paragraph 49, in the context of the NPPF as a whole and within its proper statutory context.

Obviously policies which restrict development in order to afford a Green Gap between settlements do restrict housing development in those areas. But the need for housing is not the only consideration in national planning policy. Looking at the NPPF more widely, protection and enhancement of the natural environment is identified as a key dimension of sustainable development which the planning system is intended to achieve: see paragraphs 7 and section 11 “Conserving and enhancing the natural environment”. It is acknowledged (at paragraph 156) that the Local Plan should have policies to deliver conservation of the natural environment, including landscape, and at paragraph 157, that Local Plans should identify land where development would be inappropriate. Therefore it seems unlikely that the Minister intended local policies protecting the environment or identifying areas where development would be inappropriate to be treated as out-of-date, solely on the ground that their indirect effect was to restrict the supply of housing in those areas, without consideration of their wider planning purpose and value.” [52]-[54]

“The purpose of paragraph 49 was to prompt local planning authorities into updating their Local Plans, and meeting the housing supply requirements in paragraph 47. Unfortunately, the process of adopting a new Local Plan is often a lengthy one, as demonstrated in Cheshire East — perhaps longer than the Minister anticipated when drafting the NPPF.” [57]


Phides Estates (Overseas) Limited v SSCLG
[2015] EWHC 827 (Admin), Lindblom J

Richard Moules appeared for the Secretary of State

Paul Brown QC appeared for the Third Defendant

“The court has on several occasions considered what paragraph 49 of the NPPF means when it refers to “policies for the supply of housing” (see, for example, the judgment of Lang J. in William Davis Ltd. v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin) , at paragraph 47; the judgment of Lewis J. in Cotswold District Council v Secretary of State for Communities and Local Government [2013] EWHC 3719 (Admin) , at paragraph 30; the judgment of Ouseley J. in South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin) , at paragraphs 44 to 47; and the judgment of Supperstone J. in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2015] EWHC 132 (Admin) , at paragraph 38). Both a narrow view and a broader view have been favoured. I prefer the broader. As Ouseley J. said in paragraph 46 of his judgment in South Northamptonshire Council , the concept is “either very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing, ignoring any other policies dealing generally with the location of development or areas of environmental restriction, or alternatively it requires a broader approach which examines the degree to which the particular policy generally affects housing numbers, distribution and location in a significant manner”. Ouseley J. went on to say, at paragraph 47, that in his view the language of paragraph 49 of the NPPF “cannot sensibly be given a very narrow meaning”. Otherwise, policies for the provision of housing which were not up to date might have their weight restored by “counterpart provisions in policies restrictive of where development should go”. But Ouseley J. accepted, at paragraph 48, that once the decision-maker had properly directed himself on the scope of paragraph 49 of the NPPF, the question of whether a particular policy fell within it was “very much a matter for his planning judgment”. I agree.” [65]

Wenman v SSCLG [2015] EWHC 925 (Admin), Lang J

Stephen Whale appeared for the Secretary of State

“I do not consider that the words “housing applications” in paragraph 49 NPPF should be interpreted narrowly so as to be restricted to applications for planning permission to construct “bricks and mortar” houses. “Housing application” is not a statutory term under section 55(1) TCPA 1990. Nor is it defined in the NPPF. Whilst I appreciate that a caravan or a mobile home would not usually be described as a “house”, planning policies are not to be interpreted as if they were statutes or contracts (Tesco Stores Limited v Dundee City Council supra). As I have explained above, I consider that section 6 NPPF is intended to cover homes and dwellings, in a broad sense, and it would be inconsistent with that interpretation if an application for planning permission for a mobile home was excluded from the scope of paragraph 49.” [41]

“The purpose of paragraph 49 is partly to incentivise local planning authorities to provide the requisite 5 year supply of deliverable housing sites and partly to assist applicants in obtaining planning permission for housing in areas where the supply of housing is insufficient. It is only triggered by a failure to demonstrate the supply of housing sites other than pitches on traveller sites.

Applicants for planning permission for mobile homes or caravans, whether they be gypsies, travellers or others, may wish to rely on the failure of the local planning authority to demonstrate a 5 year supply of deliverable housing sites in support of their application for planning permission. In principle, paragraph 49 enables them to do so. But in deciding which policies for the supply of housing are relevant to the application for planning permission, the decision-maker will be entitled to consider whether, and to what extent, a policy for the supply of housing, other than for pitches on traveller sites, has any relevance to the application before him, and if so, what weight should be accorded to it in the particular circumstances of the case.” [45-46] 

“The Courts have considered and applied the phrase “policies for the supply of housing” in paragraph 49 NPPF on several occasions.

The leading case is South Northamptonshire Council v Secretary of State for Communities and Local Government & Ors [2014] EWHC 573 (Admin). Ouseley J. held that a policy which stated planning permission would not be granted for development in the open countryside, subject to certain exceptions, was a policy for the supply of housing within paragraph 49 NPPF. In considering the proper interpretation of paragraph 49 NPPF he said:

“46. [The] phraseology is either very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing, ignoring any other policies dealing generally with the location of development or areas of environmental restriction, or alternatively it requires a broader approach which examines the degree to which a particular policy generally affects housing number, distribution and location in a significant manner.
47. It is my judgment that the language of the policy cannot sensibly be given a very narrow meaning. 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 though the operation of their counterpart provisions in policies restrictive of where development should go. Such policies are the obvious counterparts to policies designed to provide for an appropriate distribution and location of development. They may be generally applicable to all or most common forms of development, as with EV2, stating that they would not be permitted in open countryside, which as here could be very broadly defined. Such very general policies contrast 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.”

Other policies which have been held by the courts to be policies for the supply of housing within paragraph 49 of the NPFF either expressly address housing or are general policies restricting development, and so come within Ouseley J’s first category:

a) Cotswold District Council v Secretary of State for Communities and Local Government & Anor [2013] EWHC 3719 (Admin), Lewis J. A policy which restricted development outside development boundaries, and dealt with new-builds and other matters if the authority was to allow housing outside the development boundary, was a policy for the supply of housing within paragraph 49.
b) Hopkins Homes Ltd v Secretary of State for Communities and Local Government & Ors [2015] EWHC132 (Admin), Supperstone J. A policy which restricted new development outside the physical limits of settlements, subject to exceptions, was a policy for the supply of housing within paragraph 49.

52. Cases which fall within Ouseley J’s second category are:

a) William Davis Ltd v Secretary of State for Communities and Local Government & Anor [2013] EWHC 3058 (Admin), in which I decided that a Green Wedge policy, intended to prevent the merging of settlements and preserve open space, was not a policy for the supply of housing within paragraph 49.
b) Cheshire East Borough Council v Secretary of State for Communities and Local Government & Anor [2015] EWHC 410 (Admin) in which I decided that a Green Gap policy, intended to maintain the separation between settlements, and to prevent development which would erode the gaps between settlements and adversely affect the character of the landscape, was not a policy for the supply of housing within paragraph 49.” [49-52]


Woodcock Holdings Ltd
[2015] EWHC 1173 (Admin), Holgate J

Christopher Boyle QC appeared for the Claimant

“Mr. Honey for the Secretary of State accepted that the trigger in paragraph 49 applies just as much to “housing supply policies” in a neighbourhood plan which has been “made” (i.e. formally adopted) as to other types of statutory development plan. In my judgment that must be correct.” [21]
Paragraph 49 appears in the section of the NPPF (paragraphs 47 to 55) devoted to “delivering a wide choice of high quality homes”. The overall objective of paragraph 47 is “to boost significantly the supply of housing”. The first requirement is for local planning authorities “to 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 this Framework…”. The second requirement, to identify and update annually a 5 year supply of deliverable housing land, is set out in paragraph 18 of this judgment. The third requirement is that the authorities should “identify a supply of specific, developable sites or broad locations for growth, for years 6 — 10 and, where possible, for years 11 — 15”. Fourthly, local planning authorities must illustrate the expected rate of housing delivery (both for market and affordable housing) “through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing detailing how they will maintain delivery of a five-year supply of housing land to meet their housing target”. Thus, it is plain that national policy attaches considerable importance to local planning authorities being able to identify a 5 year supply of housing land to meet properly assessed housing needs on an ongoing basis.” [90]
“In my judgment it would be inappropriate to treat paragraph 49 as restricting the circumstances in which national policy lends additional support to a housing proposal because of the lack of a 5 year supply of land, to cases where the “relevant policies for the supply of housing” are contained in statutory, but not draft, development plans. Such a change in national policy regarding the importance of maintaining a 5 year supply of housing land would require explicit language to that effect (see by analogy Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2015] PTSR 274 paragraph 16). I am reinforced in that view by the “radical change” introduced by the NPPF which gives greater, not less, emphasis to meeting housing needs.” [95]
“As I have said, the first key phrase in paragraph 49, “relevant policies for the supply of housing”, is not limited to relevant policies in the statutory development plan. The language is capable of referring to policies in a draft development plan. It is also capable of referring to policies in a statutory development plan which as a matter of fact is up to date because that plan has only recently been adopted. Thus, the second key phrase, “should not be considered up-to-date”, operates as a deeming provision which treats the relevant policies as being out of date so as to engage “the presumption in favour of sustainable development” (the third key phrase in paragraph 49). Plainly, the object is to increase the likelihood of planning permission being granted for a housing proposal where a 5 year supply does not exist, by applying a “presumption in favour of sustainable development”, subject to taking into account all other material considerations in a particular case, whether they tell in favour of or against the grant of planning permission, or are neutral.” [110]

 

Oadby and Wigston Borough Council [2016] EWCA Civ 1040, Black, Tomlinson and Lindblom LJJ

Gwion Lewis appeared for the Secretary of State

Reuben Taylor QC appeared for the Interested Party

“It is important to keep in mind the essential differences between the distinct activities of development plan-making on the one hand and development control decision-making on the other, and between the policies of the NPPF relating respectively to those two activities. We are concerned here with a development control decision. The inspector was not conducting an examination of a local plan. He was making a decision, on appeal, on an application for planning permission for housing development. How did the policies in those paragraphs of the NPPF bear on that exercise?” [35] 

“The question here is whether in circumstances of the kind that arose in this case, where the relevant housing market area extended beyond the council's administrative area, it was permissible, in principle, for the inspector to identify the relevant housing requirements at the level he did, on the basis of the identifiable, objectively assessed needs for market and affordable housing within that administrative area – having regard, of course, to all the material before him, including the Strategic Housing Market Assessment.

It is argued on behalf of the Secretary of State that the answer to that question is unequivocally and inevitably “Yes”. I agree. It is also submitted that a decision-maker in a case such as this is not necessarily obliged to accept an apportionment – or distribution – of housing need “ascribed” in a Strategic Housing Market Assessment between different administrative areas in the housing market area. Again, I agree. A decision-maker in these circumstances may of course draw upon a Strategic Housing Market Assessment in seeking to fix the appropriate level of housing need against which to set the supply of deliverable housing sites. But he must not adopt a housing requirement below the full, unconstrained housing needs in the relevant area. He should not, for example, adopt a level of need for market or affordable housing that is, in truth, the product of a conscious redistribution of need from one local planning authority's area to another where this is effectively – in the inelegant jargon – an untested “policy on” decision, liable to be revisited and changed in a subsequent local plan process. Otherwise, he will likely fall into the kind of error that undid the inspector's decision in Hunston Properties Ltd. – where the inspector made the mistake of using “a figure for housing requirements below the full objectively assessed needs figure until such time as the Local Plan process came up with a constrained figure” (paragraph 26 of Sir David Keene's judgment).” [37]-[38] 

“There may be many good reasons for an inspector in a case such as this to hesitate before accepting an apportionment of housing needs between two or more local planning authorities' areas in a Strategic Housing Market Assessment. Considerations relevant to such a distribution of need may include, Mr Taylor submitted, the implications for transport infrastructure, the sustainability of a significant proportion of the population in one area commuting to and from work in another, the provision of affordable housing where it is needed, and various demographic, economic and social consequences of migration within the housing market area. Such considerations will influence planning policy, and will usually require formal co-operation between local planning authorities – as is now statutorily required under section 33A of the 2004 Act – as well as discussion in the statutory process of plan-making. The issues to which they give rise are inherently unsuitable for resolution at an inquiry into an appeal under section 78 of the 1990 Act.” [41] 

“[Satnam Millennium Limited v Warrington Borough Council [2015] EWHC 370 (Admin)] says nothing about the approach a decision-maker should take in a case where housing needs fall to be assessed in the absence of a local plan complying with policy for plan-making in the NPPF. It does not touch the reasoning in this court's decision in Hunston Properties Ltd.” [50] 

“There is, logically, no inconsistency between, on the one hand, the “full, objectively assessed needs” for housing in a housing market area wider than a single administrative area, when determined under the policies for plan-making in paragraphs 47 and 159 of the NPPF, and, on the other, the housing requirement for a local planning authority's own area within that housing market area, when determined for the purposes of the policy for development control in paragraph 49 in the manner indicated by this court in Hunston Properties Ltd. . They do not have to be the same. NPPF policy allows them to be different.” [51]

Daventry DC [2015] EWHC 3459 (Admin), Lang J

“It follows that if a planning authority is able to demonstrate a five year supply, its policies are not to be treated out-of date for this purpose. Importantly, a planning authority is entitled to decide for itself the locations to which it allocates its housing supply, consistently with national and local policy.” [46]

“The sole focus of NPPF 49 is the supply of deliverable housing sites, pursuant to the policy in NPPF 47. In contrast, NPPF 215 has a much broader ambit, which requires assessment of the extent to which the saved policies are consistent with all NPPF policies, including policies for the protection of the natural environment and policies favouring development in settlements, brownfield sites, sustainable locations etc. and not in the countryside.” [48]

 

Edward Ware Homes Ltd [2016] EWHC 103 (Admin), Holgate J

“Although the Claimant accepts that Crane and Woodcock correctly interpreted the NPPF, its argument under ground 6 effectively contends that where a 5-year supply cannot be demonstrated, paragraph 49 does not simply provide a trigger to engage paragraph 14, but creates an irrefutable presumption that all housing supply policies are out-of-date when their weight comes to be assessed. An irrefutable presumption of that nature makes no sense whatsoever given that it is the decision-maker's task to assess the weight to be given to the housing supply policies, including any housing distribution policy. The weight to be attributed to a policy must be capable of including a decision-maker's assessment as to whether the justification for and terms of that policy continue to be sound.” [29]

 

Suffolk Coastal DC v Hopkins Homes Ltd and SSCLG; Richborough Esetates Partnership LLP v Cheshire East BC and SSCLG [2016] EWCA Civ 168, Jackson, Vos and Lindblom LJJ

Christopher Lockhart-Mummery QC appeared for Hopkins Homes Ltd

“The contentious words are “[relevant] policies for the supply of housing”. IN our view the meaning of those words, construed objectively int heir proper context, is “relevant policies affecting the supply of housing”. This corresponds to the “wider” interpretation, which was advocated on behalf of the Secretary of State in these appeals. Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A “relevant” policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bears upon the principle of the site in question being developed for housing. The meaning of the phrase “for the supply” is also, we think, quite clear. The word “for” is one of the more versatile prepositions in the English language. It has a large number of common meanings. These include, according to the Oxford Dictionary of English, 2nd edition (revised), “affecting, with regard to, or in respect of”. A “supply” is simply a “stock or amount of something supplied or available for use” – again, the relevant definition in the Oxford Dictionary of English. The “supply” with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable “five-year supply of deliverable housing site”. Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does not violence at all to the language. On the contrary, it is to construe the policy exactly as it is written.

Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to polciies 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. 

The “narrow” interpretation of the policy, in which the words “[relevant] policies for the supply of housing” are construed as meaning “[relevant] policies providing for the amount and distribution of new housing development and the allocation of sites for such development”, or something like that, is in our view 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, 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. 

Restrictive policies, whether broadly framed or designed for some more specific purpose, may – we stress “may” – act against the Government’s policy of boosting significantly the supply of housing land. If a local planning authority is unable to demonstrate the requisite five-year supply of housing land, both the policies of its local plan that identify sites for housing development and policies restrictive of such development are liable to be regarded as not “up-to-date” under paragraph 49 of the NPPF – and “out-of-date” under paragraph 14. Otherwise, government policy for the delivery of housing might be undermined by decisions in which development plan policies that impede a five-year supply of housing land are treated as "up-to-date”. 

 

“We therefore reject the “intermediate” or “compromise” interpretation of paragraph 49. Like the “narrow” interpretation, it fails to recognize that it is the effect of certain policies – whether general or specific – in restricting housing development and preventing an authority from demonstrating a “five-year supply of deliverable housing sites” that brings them within the scope of the policy in paragraph 49.” [32]-[35], [38] 

“We ought to say…that those cases in which the court has rejected the “wider” interpretation of the policy have not in our view been correctly decided on that particular point. Of the cases cited to us… this may be said of the decision in William Davis, where the judge concluded that a policy restricting development in a “Green Wedge”… was not a relevant policy for the supply of housing within paragraph 49, despite the fact that it prevented housing development on the appeal site… We should add, however, that the judge did not have the benefit fo all the submissions we have heard on this point, or of the later decisions in which it has been considered. In Wenman the judge appears to have accepted that two policies of a local plan dealing respectively with the “Environmental Implications of Development” and “Design and Layout”… were not policies for the supply of housing, because they were not “general” restrictions on development and fell within the second kind of restrictive policy referred to by Ouseley J. in paragraph 48 of his judgment in Barwood Land… But that distinction between two kinds of policy restrictive of housing development is not a dividing line between policies that are “for the supply of housing” and those that are not… Again, however, we would add that the judge did not have the advantage of the argument we have heard. It also seems to us that the erroneous interpretation of the policy in paragraph 49 of the NPPF made no difference t the outcome of the proceedings because the two local plan policies in question were not, in fact, restrictive of housing development in either of the two respects identified by Ouseley J. in Barwood Land.” [41] 

“Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is… a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. … 

We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out0of-date” policies for the supply of housing irrelevant tin the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. …” [45]-[46]


Dartford Borough Council
[2016] EWHC 649 (Admin), Gilbart J

Richard Moules appeared for the Secretary of State

Timothy Corner QC appeared for the Second Defendant

“In a case such as this, where there is a choice of two figures relied on by the parties, both of which can be criticised, but which address both ends of the possible range, neither NPPF nor the judicial authority cited above, prevent an Inspector from reaching a judgement on the issue by asking whether, when measured against either figure, there would be a benefit in planning terms in granting permission. In this case no-one suggested that the requirement figure would be below the lower figure, so using both figures to test delivery rates was a sensible way of dealing with the issue. If this were a site where there were significant objections to development, and a real issue on whether its contribution to housing provision would be beneficial, it may be that a more thorough analysis would have been required, subject always to the actual context of the actual decision in question. That is a matter to be decided on a case by case basis. But there is nothing in either St Albans v Hunston per Sir David Keene nor in Kings Lynn v SSCLG per Dove J which prevents an Inspector from adopting a sensible and pragmatic approach of testing whether, on the lower “needs” figure, there would still be advantage in the grant of permission for housing, and especially not on a site to whose development there was no sustainable objection otherwise.” [44]

 

Shropshire Council [2016] EWHC 2733 (Admin), Lang J

“Inspectors generally will be required to make judgments about housing needs and supply. However, these will not involve the kind of detailed analysis which would be appropriate at a Development Plan inquiry. The Inspector at a planning appeal is only making judgments based on the material before him in the particular case, which may well be imperfect. He is not making an authoritative assessment which binds the local planning authority in other cases.” [27] 

“I consider that NPPF 49 requires the Inspector to make his own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other party to the inquiry. I also accept the Claimant's submission that, in a case where housing needs and supply are in play, the extent of any shortfall in housing supply may well be relevant to the balancing exercise required under NPPF 14…” [28]

 

NPPF 51

San Investments Ltd [2016] EWHC 2830 (Admin), Green J

“Paragraph [51] provides that the authority should “normally” approve applications for change to residential use. It thereby creates a presumption in favour of change. All that has to be established in order to trigger the presumption is that there is “an identified need for additional housing” in the area. Where that pre-condition prevails the presumption applies and is only rebutted where there are “strong economic reasons why such development would be inappropriate” which, as drafted, is not intended to be easily involved (hence the word “strong”). The momentum implicit in paragraph [51] is, evidently, in favour of approval of a change of use.”

 

NPPF 55


R (Embleton Parish Council) v Northumberland County Council
[2013] EWHC 3631 (Admin), HHJ Behrens

Sasha White QC appeared for the Defendant

“the guidance in paragraph 55 of NPPF is significantly less onerous than in PPS7” [29]

There is no requirement that a proposal be economically viable [44].

 

Baroness Cumberlege of Newick [2017] EWHC 2057 (Admin), John Howell QC

Heather Sargent appeared for the Claimant

“One way in which the intrinsic character and beauty of the countryside is thus recognised in the NPPF is the well-known advice given (in paragraph [55]) that “local authorities should avoid new isolated homes in the countryside unless there are special circumstances such as” those listed in that paragraph. Accordingly in my judgment it cannot be considered irrational to regard a policy that was designed (as the explanatory text stated) “to identify the area beyond the boundaries where development would normally be unacceptable unless it is for uses compatible with the countryside” as being out-of-date merely because the NPPF directs specific protection to Green Belts and valued landscapes and the planning boundary does not follow the boundaries of those areas.” [116] (footnote omitted)