Legal Viewpoint: Landmark ruling clarifies housing supply policies

The meaning of the phrase "relevant policies for the supply of housing" in paragraph 49 of the National Planning Policy Framework has been disputed since it was published in 2012.

Its significance is that such policies are considered out of date for the purposes of the presumption in favour of sustainable development in paragraph 14 in the absence of a five-year supply of housing land.

High Court judges have historically adopted differing readings. Most have opted for a broader interpretation, taking the phrase to cover non-housing policies that restrict where homes can be built.

But some, notably Mrs Justice Lang, have taken a narrower view, confining the phrase to development plan housing policies. The resulting angst and uncertainty have now been resolved in a Court of Appeal judgment on a housing scheme in Suffolk.

The ruling makes several key points. First, any development plan policy that restricts provision of housing is a "relevant policy for the supply of housing" for the purposes of paragraph 49, including policies for green belt and areas of outstanding natural beauty. Second, paragraph 49 triggers the presumption in favour of sustainable development in paragraph 14.

Third, policies rendered out of date by paragraph 49 cannot be ignored, but are likely to carry less weight. Finally, the decision-maker must decide what weight should be placed on these policies, but this is likely to be affected by factors such as the extent of any shortfall in housing, councils’ actions to remedy this and the purpose of the particular policy.

The case brings certainty to questions over the effect of a lack of a five-year land supply. The broad interpretation of housing supply policies will please housebuilders, and is likely to lead to a fresh wave of applications for housing in areas with a five-year shortfall, while councils will welcome confirmation that even out-of-date policies must still be taken into account.

One interesting part of the ruling concerns the factors that might affect the weight placed on out-of-date policies. While inspectors have recently tended to avoid being drawn into debate over the extent of any shortfall in land supply, the Court of Appeal has put the issue back at the heart of decision-making. In future, inspectors will need to take a view on the extent of any shortfall and the effectiveness of measures taken to address it.

Suffolk Coastal District Council v Hopkins Homes; Date: 17 March 2016; Ref: [2016] EWCA Civ 168

Trevor Ivory is head of development and infrastructure planning at DLA Piper


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