Suffolk Coastal District Council v Hopkins Homes Ltd & Anor

Under paragraph 49 of the National Planning Policy Framework, relevant policies “for the supply of housing” are policies affecting housing supply. They include policies which provide housing sites and policies which constrain where housing may be developed.

Whether a particular development plan policy falls within that description is a matter of planning judgment, provided the decision-maker correctly understands both national policy and the plan policy. Where a five-year supply of deliverable housing sites cannot be demonstrated, relevant policies are out-of-date and paragraph 14 applies. Such policies remain relevant and must receive the weight reasonably judged appropriate. Neither national policy nor the court prescribes that weight.

These conjoined appeals concerned the interpretation and application of paragraph 49 of the National Planning Policy Framework where a local planning authority could not demonstrate a five-year supply of deliverable housing sites.

In the first appeal, an inspector dismissed Hopkins Homes Ltd’s appeal against refusal of permission for 26 houses. Supperstone J quashed that decision in [2015] EWHC 132 (Admin). Suffolk Coastal District Council appealed. In the second, an inspector allowed Richborough Estates Partnership LLP’s appeal and granted outline permission for up to 146 dwellings. Lang J quashed that decision in [2015] EWHC 410 (Admin), and Richborough Estates appealed.

The central issues were which development plan policies were relevant policies for the supply of housing, what legal consequences followed when those policies were out-of-date, and how much weight they could receive.

1. The district council’s appeal was dismissed and Richborough Estates’ appeal was allowed. The phrase “relevant policies for the supply of housing” in paragraph 49 means relevant policies affecting housing supply. It includes policies providing positively for housing and policies whose effect is to constrain housing development. The narrow and intermediate interpretations were rejected. The court disapproved the contrary approach in William Davis and Wenman. The wider interpretation reflected the language, context and purpose of the policy.

2. Planning policy must be interpreted objectively according to its language read in context, but it must not be construed as legislation or a contract. The proper interpretation of national policy and development plan policies is a question of law. Once those instruments are correctly understood, whether a particular plan policy affects housing supply is a matter of planning judgment, reviewable only on public law grounds.

3. Paragraphs 14 and 49 do not disapply an out-of-date development plan policy or prescribe its weight. The statutory framework under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004 remains controlling. The decision-maker must determine the application in accordance with the development plan unless material considerations indicate otherwise. An out-of-date policy remains relevant and receives such weight as the decision-maker reasonably considers appropriate. Relevant circumstances may include the housing shortfall, steps being taken to address it and the particular purpose of a restrictive policy.

4. In the Hopkins Homes case, the inspector adopted the erroneous narrow interpretation. Policies SP19, SP27 and SP29 materially constrained the location and amount of housing and were relevant policies for housing supply. Given the absence of a five-year supply, they had to be treated as out-of-date. The inspector also misunderstood the provenance of Yoxford’s settlement boundary and failed to make the distinct balanced judgment required by paragraph 135 concerning harm to the significance of a non-designated heritage asset. His decision was therefore properly quashed.

5. In the Richborough Estates case, the inspector lawfully treated policies NE2, NE4 and RES5 as out-of-date while still giving policy NE4 appropriate weight for its green-gap purpose. He correctly applied both the statutory presumption in favour of the development plan and the policy presumption in favour of sustainable development. His decision disclosed no error of law and should not have been quashed.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 168, dismissed Suffolk Coastal District Council’s appeal and allowed Richborough Estates Partnership LLP’s appeal.

2. Administrative Court, Planning Court: Supperstone J, in [2015] EWHC 132 (Admin), quashed the inspector’s dismissal of Hopkins Homes Ltd’s planning appeal.

3. Administrative Court, Planning Court: Lang J, in [2015] EWHC 410 (Admin), quashed the inspector’s decision granting outline planning permission to Richborough Estates Partnership LLP.