Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2017] UKSC 37

The Supreme Court considered the proper interpretation of paragraph 49 of the National Planning Policy Framework concerning housing land supply. Two planning appeals involving housing developments at Yoxford and Willaston were dismissed, with the Court clarifying that 'policies for the supply of housing' should be given a narrow interpretation.

Facts

The conjoined appeals concerned two planning applications for housing development. The first related to a proposed development of 26 houses at Yoxford in the area of Suffolk Coastal District Council (the ‘Yoxford site’), where the council refused permission and the inspector dismissed the appeal. The second concerned a proposed development of up to 170 houses (later 146) on land north of Moorfields, Willaston, in the area of Cheshire East Borough Council (the ‘Willaston site’), where the inspector allowed the appeal following the council’s failure to determine the application.

In the Yoxford case, the inspector’s decision was quashed by Supperstone J and that decision was upheld by the Court of Appeal. In the Willaston case, Lang J quashed the inspector’s decision, but the Court of Appeal reversed her decision. Both councils appealed to the Supreme Court.

Issues

The central issue was the proper interpretation of paragraph 49 of the National Planning Policy Framework (‘NPPF’), which provides:

Housing applications should be considered in the context of the presumption in favour of sustainable development. 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 Court had to determine whether ‘relevant policies for the supply of housing’ should be construed narrowly (limited to policies dealing with the numbers and distribution of new housing), widely (including counterpart policies whose effect is to restrain housing supply), or in an intermediate manner. The appeals also provided an opportunity to consider the broader legal status of the NPPF and its relationship with the statutory development plan.

Arguments

The appellant councils advocated a narrow interpretation of paragraph 49, restricting its operation to policies dealing with the positive provision of housing. The respondents argued for a wider interpretation, including policies that affect housing supply by restricting development. The Court of Appeal had adopted the wider view, reading ‘for the supply of housing’ as meaning ‘affecting the supply of housing’.

Judgment

Legal status of the NPPF

Lord Carnwath, giving the lead judgment, clarified that the Secretary of State’s power to issue national policy guidance derives from the planning Acts, not the royal prerogative. The NPPF, in relation to determination of planning applications, is no more than ‘guidance’ and a ‘material consideration’ for the purposes of section 70(2) of the 1990 Act. It cannot displace the statutory primacy of the development plan.

Interpretation of policy

Adopting the approach in Tesco Stores Ltd v Dundee City Council, the Court confirmed that policy statements should be interpreted objectively in accordance with the language used, read in their proper context. However, Lord Carnwath cautioned against over-legalisation of the planning process and emphasised the need to respect the expertise of specialist planning inspectors. Courts should distinguish between issues of interpretation of policy (for judicial analysis) and issues of judgment in the application of policy (for the decision-maker).

Interpretation of paragraph 49

Lord Carnwath preferred the narrow interpretation. Read in context (particularly alongside paragraph 47), ‘policies for the supply of housing’ simply indicates ‘housing supply policies’. The word ‘for’ indicates the purpose of the policies, distinguishing them from other categories such as policies for the supply of employment land or for the protection of the countryside. There was no justification for substituting ‘affecting’ for ‘for’.

However, the Court emphasised that this should not lead to a legalistic exercise to define individual policies. The important question is not how to define individual policies but whether the result is a five-year supply in accordance with paragraph 47. If there is a shortfall, it triggers the operation of the ’tilted balance’ in paragraph 14, regardless of which policies caused the failure.

Paragraph 14 and the tilted balance

The Court explained that paragraph 14 is the substantive provision by reference to which development plan policies are to be assessed. Restrictive policies remain relevant, but their weight must be judged against the needs for development, subject to the tilted balance. The Court of Appeal was wrong to create a ‘non-statutory fiction’ whereby up-to-date non-housing policies are treated as out-of-date.

Disposal of the appeals

On the Willaston appeal, although the inspector erroneously treated policy NE.2 as a policy for the supply of housing, this did not materially detract from his reasoning. His final conclusion correctly reflected the tilted balance under paragraph 14.

On the Yoxford appeal, the inspector’s categorisation was inappropriate and unnecessary but only gave rise to legal error in distorting his application of paragraph 14. He had attached excessive weight to the settlement boundary as a supposedly ‘up-to-date’ policy when it was, to an extent, merely the counterpart of housing policies. The decision was therefore quashed, though on narrower grounds than the Court of Appeal identified. Lord Carnwath disagreed with the Court of Appeal’s criticisms of the inspector’s treatment of the Heritage Asset policy under paragraph 135.

Lord Gill’s concurring judgment

Lord Gill (with whom Lord Neuberger, Lord Clarke and Lord Hodge agreed) endorsed Lord Carnwath’s conclusions but added that the narrow interpretation should be adopted. He emphasised that the focus must then shift to other material considerations under paragraph 14, where the wider view of development plan policies is taken. The presumption in favour of sustainable development can only be displaced on the two grounds in paragraph 14.

Implications

The judgment provides authoritative guidance on the interpretation of paragraphs 14 and 49 of the NPPF. The narrow interpretation of ‘policies for the supply of housing’ is now confirmed, but the Court has indicated that the precise categorisation of individual policies is less important than the overall application of the tilted balance under paragraph 14 where there is a housing supply shortfall.

The decision has significance for the relationship between national policy and the statutory development plan. The NPPF is guidance which cannot displace the statutory primacy of the development plan under section 38(6) of the 2004 Act and section 70(2) of the 1990 Act.

Importantly, the Supreme Court has cautioned against over-legalisation of the planning process. Courts should respect the expertise of planning inspectors, and applicants seeking to challenge planning decisions must distinguish clearly between issues of policy interpretation (for the courts) and issues of judgment in policy application (for the decision-maker). This guidance is significant for planning practitioners, local authorities, developers and inspectors, providing a framework for the approach to be taken in housing supply cases and reinforcing the limited role of judicial review in matters of planning judgment.

The decision also clarifies that where housing supply policies are ‘out-of-date’, other restrictive policies are not automatically rendered out-of-date; rather, their weight is to be assessed in the planning balance under paragraph 14, taking account of the need for housing and the extent of any shortfall.

Verdict: Both appeals dismissed. The Supreme Court upheld the Court of Appeal’s orders in both cases: in the Yoxford appeal, the order of Supperstone J quashing the inspector’s decision was affirmed (though on narrower grounds), and the planning appeal must be re-determined; in the Willaston appeal, the inspector’s grant of planning permission was restored.

Source: Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2017] UKSC 37