The Court was asked as to the proper interpretation of paragraph 49 of the National Planning Policy Framework: ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.’
Held: With some crticisms, the Court of Appeal decision was upheld.
As to Willaston: ‘On any view, quite apart from paragraph 49, the current statutory development plan was out of date, in that its period extended only to 2011.’
As to Yoxford: ‘there was an up-to-date development plan, adopted in the previous year; but its housing supply policies failed to meet the objectives set by paragraph 47 of the NPPF. The inspector rightly recognised that they should be regarded as ‘out-of-date’ for the purposes of paragraph 14.’
‘The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.’
Judges:
Lord Neuberger, President, Lord Clarke, Lord Carnwath, Lord Hodge, Lord Gill
Citations:
[2017] UKSC 37, [2017] WLR(D) 319, [2017] JPL 1084, [2017] PTSR 623, [2017] 4 All ER 938, [2017] 1 WLR 1865, UKSC 2016/0076, https://www.supremecourt.uk/watch/uksc-2016-0076/230217-pm.html
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 220217 am Video, SC 220217 pm Video, SC 230217 am Video
Statutes:
Planning and Compulsory Purchase Act 2004, Town and Country Planning Act 1990
Jurisdiction:
England and Wales
Citing:
At first instance – Cheshire East Borough Council v Secretary of State for Communities and Local Government and Another Admn 25-Feb-2015
. .
At first instance – Hopkins Homes Ltd v Secretary of State for Communities and Local Government and Another Admn 30-Jan-2015
. .
Appeal from – Suffolk Coastal District Council v Hopkins Homes Ltd and Another CA 17-Mar-2016
The parties challenged the interpretation of a paragraph (49) of the National Planning Policy: ‘In particular, they concern the meaning of the requirement in the policy that ‘[relevant] policies for the supply of housing should not be considered . .
Cited – City of Edinburgh Council v Secretary of State for Scotland and Another; Same v Same (Conjoined Appeals) HL 31-Oct-1997
The Listed buildings registers are to be read consistently; the trading level is a material consideration in listed buildings consent applications. The weight to be given to a material consideration once identified was a matter of judgment for the . .
Cited – Secretary of State for Communities and Local Government v West Berkshire District Council and Another CA 11-May-2016
Laws LJ said that the Secretary of State’s power to formulate and adopt national planning policy is not given by statute, but is ‘an exercise of the Crown’s common law powers conferred by the royal prerogative.’ . .
Cited – Proclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
Cited – Pioneer Aggregates (UK) Limited v Secretary of State for the Environment HL 1985
The House considered the concept of a spent planning consent.
Held: This was a mineral operation and every shovelful dug amounted to another act of development. Therefore, although it had been begun, the planning permission was not spent and . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Cited – Wychavon District Council v Secretary of State for Communities and Local Government and others CA 23-Jun-2008
The court considered the rejection of an application for temporary planning consent by the gipsies to place a caravan on land in a green belt.
Held: The appeal succeeded. There was a requirement to balance the need to maintain the green belt . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Tesco Stores Ltd v Dundee City Council SC 21-Mar-2012
The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not . .
Cited – William Davis Ltd and Another v Secretary of State for Communities and Local Governments and Another Admn 11-Oct-2013
One of the grounds of refusal was based on a policy E20 the effect of which was generally to exclude development in a so-called ‘green wedge’ area defined on the proposals map. Lang J recorded an argument for the developer that the policy should . .
Cited – Cotswold District Council v Secretary of State for Communities and Local Government and Another Admn 27-Nov-2013
If a planning policy is deemed to be ‘out-of-date’ it was in practice to be given minimal weight, in effect ‘disapplied’. . .
Cited – Crane v Secretary of State for Communities and Local Government and Another Admn 23-Feb-2015
‘the weight to be given to the ‘policies for housing development’ in [a] core strategy would, in the circumstances of that case, be ‘greatly reduced’ by the absence of a five-year supply of housing land. However, the weight to be given to such . .
Cited – Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government and Another Admn 19-Mar-2014
The company appealed against rejection of its appeal against the inspector’s refusal of its planning application for the construction of 91 new homes. . .
Cited by:
Cited – Dover District Council v CPRE Kent SC 6-Dec-2017
‘When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a . .
Cited – Samuel Smith Old Brewery (Tadcaster) and Others, Regina (on The Application of) v North Yorkshire County Council SC 5-Feb-2020
The Court was asked whether the appellant county council, as local planning authority, correctly understood the meaning of the word ‘openness’ in the national planning policies applying to mineral working in the Green Belt, as expressed in the . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 27 May 2022; Ref: scu.582173