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The Supreme Court Rules on Housing Aspects of the NPPF

Executive Summary: The National Planning Policy Framework (NPPF) states that policies for the supply of housing are ‘out of date’ where the planning authority cannot demonstrate a 5 year supply of housing. The Supreme Court has ruled (link) that this only applies to policies concerning the numbers and distribution of new housing and not to policies concerning restrictions on development. This decision preserves Councils’ abilities to protect their local area.

The issues: The issue at question was the scope of paragraph 49 of the NPPF, which states that:

“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”.

Whether a policy is ‘up to date’ according to the NPPF is of considerable importance as, under paragraph 14, where a policy is not up to date, there is a balance in favour of granting permission for sustainable development. The court considered three approaches to defining which policies are covered by section 49 of the NPFF:

  1. The narrow definition, limited to policies dealing only with the numbers and distribution of new housing.

  2. The wide definition, which also includes policies which restrain the supply of housing, for example by restricting development in certain areas.

  3. The intermediate definition, which is similar to the wide definition, but excluding policies designed to protect specific areas or features.

The Judgment: The Court ultimately found in favour of the ‘narrow’ interpretation of paragraph 49, noting that the ‘wider’ definition would require that factually up to date non-housing policies be treated as ‘up to date’ solely for the purposes of paragraph 14.

Conclusion: This is a positive decision for Councils who, were a ‘wide’ definition to paragraph 49 to be applied, would see a considerable loss to their ability to enforce their environmental and amenities policies in the face of sustainable development. This decision, however, strikes a balance between the Government’s interest in promoting sustainable development and Councils’ interests in protecting their local area.

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