Hopkins Homes Ltd v Secretary of State for Communities and Local Government

The Supreme Court considered the meaning and operation of paragraph 49 of the National Planning Policy Framework (NPPF) as a trigger for the "tilted balance" in paragraph 14, and the relationship between the NPPF and the statutory development plan (including the roles of sections 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004). The Court emphasised that the NPPF is material national policy guidance and does not displace the statutory primacy of the development plan.

The Court rejected the need to create a legal fiction whereby non-housing policies (which are otherwise up-to-date) are to be treated as "out-of-date" merely to trigger paragraph 14. It concluded that paragraph 49 should be read in its context as dealing with the housing supply policies whose purpose is to identify deliverable housing sites and to achieve the five-year supply required by paragraph 47. Whether and how much weight to give development plan policies when the five-year supply is not demonstrated remains a matter for planning judgment under paragraph 14.

Applying these principles to the two appeals, the Court upheld the outcome reached below: permission for the Willaston site should stand, while the Yoxford appeal decision was quashed and the matter requires re-determination because the inspector there gave undue weight to the settlement boundary and did not carry out the paragraph 135 "balanced judgement" on the non-designated heritage asset.

Background and parties: These consolidated appeals concerned two separate housing planning appeals: (1) an appeal by Hopkins Homes against the dismissal of an application for 26 houses at Old High Road, Yoxford (Suffolk Coastal District Council was the appellant to this Court); and (2) an appeal concerning a large housing proposal near Willaston (Richborough/Cheshire East). The appeals required interpretation of paragraph 49 of the NPPF and its interaction with paragraph 14, and questions about the legal status of the NPPF and the respective roles of courts and planning decision-makers.

Procedural history: The matters had been considered at inquiry by planning inspectors (decisions dated July and August 2014). In the Yoxford matter the inspector dismissed the appeal; that decision was quashed in the High Court (Supperstone J) and that quashing was affirmed by the Court of Appeal. In the Willaston matter the inspector allowed the appeal; that allowance was quashed by Lang J in the High Court but the Court of Appeal restored the permission (Lindblom LJ). Both councils appealed to the Supreme Court (appeals arising from [2016] EWCA Civ 168, [2015] EWHC 132 (Admin) and [2015] EWHC 410 (Admin)).

Nature of relief sought: planning permission for housing development in each case (or restoration of the inspector's grant); judicial review/quashing of inspector decisions in the High Court and inverse appeals in the Court of Appeal and Supreme Court.

Issues framed:

• How should paragraph 49 of the NPPF be interpreted: narrowly as referring only to policies directly providing for housing numbers and site allocations, more widely as including restrictive counterpart policies that "affect" housing supply, or an intermediate approach?
• What is the legal status of the NPPF and how should it be applied alongside the statutory development plan (sections 70 and 38(6))?
• Whether the inspectors in the two appeals misapplied the NPPF (including paragraph 135 on non-designated heritage assets) or otherwise erred in law.

Court’s reasoning and holdings: The Court reiterated that the NPPF is material national policy guidance but does not displace statutory plan primacy. It endorsed the general principle that interpretation of planning policy is a question for the courts while application to facts is a planning judgment for inspectors and planning authorities (drawing on Tesco v Dundee). Lord Carnwath (giving the lead judgment) preferred a reading of paragraph 49 that focuses on those policies whose purpose is to identify and secure the five-year supply of deliverable housing sites, rather than treating a wider array of non-housing policies as artificially "out-of-date". He warned against a legalistic fiction that would treat otherwise up-to-date restrictive policies as out-of-date simply because housing supply policies are deficient; weight to be given to policies remains a matter of planning judgment under paragraph 14. The Court nonetheless reached the same practical outcomes as the Court of Appeal: the Willaston inspector’s decision to allow permission stood, and the Yoxford decision was quashed because the inspector had given undue weight to the recently adopted settlement boundary and had not carried out the distinct paragraph 135 "balanced judgement" on the non-designated heritage asset.

Subsidiary findings: the Court addressed issues about the village boundary being carried forward from an earlier plan and the proper assessment of non-designated heritage assets under paragraph 135 of the NPPF, concluding that those errors required re-determination in the Yoxford case. The Court also commented on the evolving case-law on paragraph 49 and stressed that assessing weight is for decision-makers, not the courts.

Appeals dismissed. The Court held that the NPPF is material guidance which does not displace the statutory development plan; paragraph 49 should be understood in context as addressing housing supply policies that identify deliverable sites for the five-year supply, and not as a licence to treat otherwise up-to-date non-housing policies as "out-of-date" by fiction. Weight to be given to policies where a five-year supply is lacking is a matter of planning judgment under paragraph 14. Applying those principles, the Willaston inspector’s grant of permission was valid; the Yoxford inspector had erred in approach to the settlement boundary and in failing to make the distinct paragraph 135 balanced judgement on the non-designated heritage asset, so that decision must be quashed and re-determined.

The appeals to the Supreme Court arose from decisions in the High Court and Court of Appeal: decisions from the High Court at [2015] EWHC 132 (Admin) and [2015] EWHC 410 (Admin), and the Court of Appeal at [2016] EWCA Civ 168. In Yoxford the inspector’s refusal was quashed by the High Court (Supperstone J) and that quashing was upheld by the Court of Appeal; the Supreme Court dismissed the council’s appeal and affirmed the need for re-determination. In Willaston the inspector allowed the appeal, Lang J quashed the decision in the High Court, the Court of Appeal restored the permission, and the Supreme Court dismissed the council’s appeal, leaving the permission in place.