Councils to take battle over planning policies and housing supply to Supreme Court

Cheshire East and Suffolk Coastal Councils are looking to take a key case over what are ‘relevant policies for the supply of housing’ to the Supreme Court.

Last month the Court of Appeal handed down its keenly-awaited ruling in the conjoined cases of Suffolk Coastal District Council v Hopkins Homes Ltd & Anor [2016] EWCA Civ 168 and Richborough Estates Partnership LLP v Cheshire East Borough Council and Secretary of State for Communities and Local Government.

The disputes relate to an important provision in the National Planning Policy Framework. Paragraph 49 of the NPPF requires all decision makers across the country who are determining planning applications and appeals to treat “[r]elevant policies for the supply of housing as not up to date if the local planning authority (LPA) cannot demonstrate a five-year supply of deliverable housing sites.”

There were a number of High Court rulings on the phrase ‘relevant policies for the supply of housing’ before the Court of Appeal judgment.

The Court of Appeal ruled that Paragraph 49 should be interpreted widely and that it applies to all policies which are restrictive of where housing development can go.

Writing in Local Government Lawyer, Christopher Young, a barrister at No 5 Chambers who appeared for Richborough Estates, explained: “So if an LPA cannot demonstrate a five-year supply of housing land then its settlement boundary policies and countryside protection policies cannot be judged as up to date. The Court of Appeal made clear that the phrase ‘should not be considered up-to-date” in Paragraph 49, has the same meaning as “out of date” in Paragraph 14 of the NPPF. So if there is no five-year supply of housing land, environmental protection policies are to be seen as out of date.”

The Court of Appeal rejected a narrow interpretation of Paragraph 49, as argued for by Cheshire East and previously accepted by Mrs Justice Lang in the High Court.

Giving the judgment of the court, Lord Justice Lindblom said Suffolk Coastal’s decision in the Hopkins Homes case should be dismissed and Richborough Estates’ appeal in the Cheshire East case should be allowed.

Announcing its plans to apply jointly with Suffolk Coastal to the Supreme Court for permission to appeal, Cheshire East said the decision was “a bid to protect local planning powers and prevent developers ‘riding roughshod’ over councils’ development policies”. 

It argued that the Court of Appeal ruling undermined the scope and force of council planning policies to shape development. 

“The aim is to maintain the significance of Local Plans and Neighbourhood Plans in determining applications for development even where a council cannot show it has the required five-years’ deliverable housing land supply identified,” Cheshire East said.

Cllr Ainsley Arnold, the local authority's Cabinet member for housing and planning, said: “We have thought about this long and hard and it is not something we do lightly. However, this court decision is too important to be allowed to go unchallenged. 

“It is clear to us it would have deeply detrimental implications for councils across the country and their powers to protect local communities from unplanned and unsustainable development. 

“We are a council that puts its residents first and believe this action is necessary to protect local people, their communities and our beautiful Cheshire East countryside. Otherwise, developers will be able to ride roughshod over locally-decided development policies.”