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NPPF: Supreme Court provides welcome clarity on housing supply

The Supreme Court has ruled on the correct interpretation of paragraph 49 of the National Planning Policy Framework (NPPF).

Where housing policies are not up-to-date

Under paragraph 49, housing policies should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites.

The Court of Appeal had interpreted paragraph 49 widely – to mean that any policies "relevant for the supply of housing" would be rendered out-of-date if the five year supply could not be shown.  

What about policies on other matters?

The Supreme Court rejected the Court of Appeal's interpretation, saying that it creates "a form of non-statutory fiction." Lord Carnwath made it clear that it would be a nonsense if, for example, a recently approved Green Belt policy could be rendered out-of-date merely because the housing policies in another part of the development plan failed to meet the NPPF objectives.

The role of the court

The court also emphasised the distinction between the roles of the court and planning authorities. It is for the courts to interpret policy, and for planning authorities to exercise judgment in applying it.

The supremacy of the statutory development plan

Whilst the NPPF is "guidance" and as such a "material consideration" for the local planning authority in deciding whether to grant planning permission, it does not displace the primacy of the statutory development plan.  Whilst this clarification is helpful,  it remains to be seen how this is applied in relation to future planning applications, particularly given the political issues surrounding housing policy and delivery. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions

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