Court constrains green belt development

In its debut ruling on the National Planning Policy Framework, the Supreme Court has dismissed two appeals and clarified phrasing that could have allowed more development on the green belt. Lord Carnwath closed a potential loophole that could have allowed a presumption towards development outside a development plan and on protected land when a council had no five-year land supply in place. The key arguments involved the interpretation of one sentence in the NPPF. Paragraph 49 states: “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.” The argument centred on the definition of a “relevant policy”: those that are housing specific, or wider ones that still have an impact on housing, such as the green belt. Councils have argued for a narrow interpretation of the phrase, while developers have looked for a wider interpretation catching any policy that affects the supply of housing. Katherine Evans, head of planning at TLT, said: “The court clarified that the NPPF does not displace the primacy of the statutory development plan in respect of non-housing policies when considering planning applications. “The judgment will also be of particular importance to green belt and other environmental policies, as the court ruled that up-to-date policies should still be applied through paragraph 14 [a presumption in favour of sustainable development]; even where authorities fail to demonstrate a five-year land supply and fall foul of paragraph 49.” While clarifying the sentence, Lord Carnwath said that paragraph 49 did not require “legalistic analysis” and that the context of decisions was important. He said: “It is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are ‘significantly and demonstrably’ outweighed by the adverse effects, or where ‘specific policies’ indicate otherwise.” With the law lords at the Supreme Court shying away from an overly legalistic approach, it is possible to interpret their argument as meaning that for policies less sacrosanct than environmental laws, there will be a greater predisposition to development. DLA Piper UK planning head Trevor Ivory said: “The judgment renders paragraph 49 irrelevant… the critical question is whether a planning authority can demonstrate a five-year land supply. “If not, the second limb of paragraph 14 is triggered and the decision-maker will need to have regard to the extent to which particular policies of the development plan are the reason for the underperformance when deciding what weight to give to those policies in the application of the titled balance – regardless of whether they are housing supply policies or not.” What the NPPF says Paragraph 14 (abridged): “At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking… “Where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: ■ any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this framework taken as a whole; ■ specific policies in this framework indicate development should be restricted [green belt, local green space, an area of outstanding natural beauty, etc].” Paragraph 49: “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.” The Supreme Court’s green belt cases The law lords ruled on two cases: Suffolk Coastal District Council v Hopkins Homes Ltd and another and Richborough Estates Partnership LLP and another v Cheshire East Borough Council The cases centred around two planning appeals, with the developers in both cases arguing that development should be allowed because the councils did not have five-year land supplies in place. In Suffolk Coastal, the council refused planning permission for 26 houses in Yoxford, a decision upheld at appeal by the inspector. The high court quashed his decision, a ruling upheld by the court of appeal, before it went to the Supreme Court. In Richborough Estates, the council did not decide the application and Richborough appealed successfully to an inspector. The council then succeeded in overturning that decision in the high court, only to see that reversed by the court of appeal. The council then appealed to the Supreme Court. In both cases, the judges found in favour of the development. To send feedback, e-mail alex.peace@egi.co.uk or tweet @egalexpeace or @estatesgazette To send feedback, e-mail jess.harrold@egi.co.uk or tweet @jessharrold or @estatesgazette