Why a Court of Appeal ruling could loosen housing constraints

A key Court of Appeal ruling could give developers greater scope to build on protected land - such as the green belt - if authorities cannot demonstrate a five-year supply of deliverable housing sites, experts say.

Judgement: Developer Richborough Estates says the Court of Appeal’s ruling has set a “landmark” precedent
Judgement: Developer Richborough Estates says the Court of Appeal’s ruling has set a “landmark” precedent

A Court of Appeal judgement has concluded a lengthy legal battle over plans for up to 170 homes in a designated green gap in Cheshire. Experts said that, while the ruling would not result in an "open door" for development, it could give applicants a new avenue to promote sites that might previously have been regarded as off limits.

In 2013 developer Richborough Estates sought permission for the homes in Willaston, Cheshire, on a site that falls within the green gap. The application was allowed on appeal, but a High Court judge later overturned the inspector’s decision. Earlier this month, judges at the Court of Appeal ruled that the inspector "made no error of law" when allowing the appeal.

The series of decisions considered how to interpret paragraph 49 of the National Planning Policy Framework (NPPF), which 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". In particular, the decisions looked at what could be considered "relevant policies for the supply of housing".

The planning inspector held that the council’s green gap policy should be considered a relevant policy for the supply of housing. He concluded that, because the council could not demonstrate a five-year housing land supply, its green gap policy could not be considered up-to-date and the weight given to it should be reduced. However, overturning the inspector’s decision, the High Court judge found the inspector had been wrong to regard the green gap housing policy as one that was out of date.

But in the latest judgement the Court of Appeal overturned the High Court’s decision. The judges said that their interpretation of the policy does not confine the concept of "policies for the supply of housing" simply to policies in the development plan that support the delivery of new housing "in terms of numbers and distribution or the allocation of sites". The judges ruled that the NPPF policy would also extend to plan policies that restrict locations for housing, including policies for the green belt, the general protection of the countryside, and for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks.

Developer Richborough Estates described the decision as a "landmark ruling" with "far-reaching implications for the development industry and planning community concerning the delivery of housing across the UK". Andrew Piatt, partner at Gateley, which acted for the developer, said the Court of Appeal had ruled that paragraph 49 of the NPPF can "catch broader policies that impact on the location of housing, like green gap".

He added: "That puts into play within the sustainable development context a number of policies that local planning authorities have used to restrict development where they don’t have a five-year housing land supply, and narrows the circumstances in which authorities can resist housing."

Michael Gallimore, partner at law firm Hogan Lovells, said that where local planning authorities cannot demonstrate a five-year housing supply, protective policies are going to be "much more open to challenge by developers or landowners promoting housing schemes".

He added that it could become much more difficult to defend and justify policies that restrict housing if an emerging plan does not demonstrate a five-year supply of housing land.

According to Gallimore, the ruling allows scope for developers to promote sites in areas where it was previously difficult to do so. The judgement lists a number of policies where this could apply, he said.

"A wide range of policies are now going to come under scrutiny where there isn’t a five-year supply," he said. "But the danger is that some people will believe that, because these policies are out of date, they can be ignored altogether. That’s certainly not the case … they still have relevance."

Jennifer Nye, senior planner at consultancy Nathaniel Lichfield & Partners, said the ruling means a decision maker can give less weight to a green belt policy that restricts the supply of housing in cases where a local authority does not have a five-year housing land supply, but added that the judgement did not say that no weight should be given to the green belt policies, rather that it would be up to the decision maker to decide what weight they should carry.

Nye stated that the judgment is a useful decision that provides clarity, but it is "not an open door for green belt development". She added that "even if a council has no five-year housing land supply and a site is in the green belt, the applicant would need to demonstrate very special circumstances".


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