photo of the bay of Exmouth, Devon

What are relevant policies for the supply of housing?  Housing applications decision to be appealed in the Supreme Court.

The Court of Appeal handed down judgment in March 2016 in the case of Richborough [1] on the meaning and effect of paragraph 49 of the National Planning Policy Framework (“the NPPF”)

Paragraph 49 of the NPPF says “Relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”.

The housing application in Richborough was for 146 homes in the “Green Gap” around Crewe. As Cheshire East Borough Council could not demonstrate a 5 year supply of housing land the Planning Inspector concluded that the Crewe Green Gap policy should be given reduced weight as a “relevant policy for the supply of housing” under paragraph 49, and “out of date” by virtue of paragraph 14 of the NPPF.

The Court of Appeal held that “relevant policies for the supply of housing” is to be interpreted widely and applies to all policies that are restrictive of where housing developments can go, including Areas of Outstanding Natural Beauty and Green Belt policies.

This judgment means that in housing applications where a local authority is unable to demonstrate a 5 year supply of housing land, a decision-maker may lawfully decide to attribute little weight to a relevant policy which is restrictive of where housing may go. The Court of Appeal clarified, however, that “they will continue to command such weight as a decision-maker reasonably finds they should have in the making of their decision”.

The courts have previously grappled with the meaning of “relevant policies for the supply of housing” on six different occasions with inconsistent results but this was the first case where the Court of Appeal has considered the issue.

Permission to appeal the Court of Appeal’s decision has now been granted at the Supreme Court, the correct interpretation of paragraph 49 is therefore to be reconsidered in full.

[1] Richborough Estates Partnerships LLP v Cheshire East Borough Council and Secretary of State for Communities and Local Government [2016] EWCA Civ 168

Chris Tofts is a partner in our planning team. If you would like to discuss any of the issues raised in this article get in touch with our planning team or give us a call on  0345 450 5558.