Planning matters

Yesterday, a Court of Appeal Judgement was handed down in the case of Richborough Estates Partnerships LLP v Cheshire East Borough Council and Secretary of State for Communities and Local Government.

The Judgement provides clarity on the phrase “relevant policies for the supply of housing” (‘the phrase’) found at paragraph 49 of the  National Planning Policy Framework (NPPF). There have been inconsistent conclusions from six other High Court cases that have considered the issue.

This Judgement is important to the development industry because paragraph 49 of the NPPF sets out that where a Local Planning Authority (‘LPA’) does not have a five year supply of deliverable housing land (‘5YHLS’) relevant policies for the supply of housing should not be considered up-to-date. NPPF paragraph 14 explains that where the development plan, or relevant policies are out-of-date, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the NPPF as a whole.

In short, where a LPA cannot demonstrate a 5YHLS permission for new housing should be granted unless there are significant and demonstrable adverse impacts.

The Judgement is clear that the interpretation of ‘the phrase’ is not confined to policies in the development plan that seek to plan positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. Importantly, the Judgement held that the phrase extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed and goes further to acknowledge that such policies could include policies for:

• the Green Belt;
• the general protection of the countryside;
• conserving the landscape of Areas of Outstanding Natural beauty and National Parks;
• wildlife;
• cultural heritage; or
• other policies whose purpose it is to protect the local environment by limiting development.

This Judgement is important to clarify to developers and decision makers how this policy is to be applied in planning decisions. However, it must be noted that that the Judgement does not make such policies as those listed above irrelevant if they are deemed to be out-of-date; it remains a matter for the decision maker as to what weight is attributed and whether any adverse impacts significantly and demonstrably outweigh the benefits of the proposal being considered.

Click here for a copy of the Judgement.

Should you have any further queries, please don’t hesitate to get in touch.