Politics, policy and primacy

The decisions in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council [2017] UKSC 37 touch upon the interplay between the government’s National Planning Policy Framework (NPPF) and the Planning Acts but make interesting reading for any public law practitioners, not just planners.

While the main argument centred upon the interpretation of the phrase ‘policies for the supply of housing’, it is the wider debate as to the relationship between local policy which is given primacy by statute and competing central government policy which is of broader interest.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires decision makers to make planning decisions ‘in accordance with the [statutory development] plan unless material considerations indicate otherwise’. In one of the seminal planning law cases, Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 described section 38(6) as creating ‘a presumption’ that the development plan should govern the decision, subject to material considerations. One such material consideration is the NPPF.

The task for the Supreme Court was, in part, to reconcile paragraph 14 of the NPPF and the requirement, where this paragraph is engaged, to grant permission for development unless ‘the adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole’ (the ‘tilted balance’). The court considered how this amended test sits with the primacy of the development plan and the mandate in NPPF paragraph 49 to consider policies for the supply of housing ‘out of date’ as a result of a planning authority’s failure to demonstrate a five-year supply of housing land.

The NPPF, as government policy, therefore arguably dictates the approach that decision makers should take to policies within the statutory development plan. Paragraph 49 states that where there is less than five years’ supply of housing land, housing policies within the statutory development plan, which is supposed to have primacy, are to be seen as ‘out of date’ and the tilted balance in paragraph 14 should apply to the determination instead of the straight balancing exercise usually applied.

Lord Carnwath was clear that paragraph 14 ‘cannot and is clearly not intended to, detract from the priority given by statute to the development plan’, that the policy-making role of the secretary of state in creating the NPPF should not be ‘overstated’, and that the NPPF itself was ‘no more than guidance’ and ‘must be exercised consistently with, and not so as to displace or distort, the statutory scheme’. This seems to be a clear decision that the NPPF should not trump local development plans and should not have such a far-reaching effect as has been contended for.

However, the overall tenor of the Supreme Court’s judgment, particularly when one looks at Lord Gill’s comments (with whom all the other justices agreed save for Lord Carnwath), shows that it is not that simple. Lord Gill echoed Lord Carnwath in stating that government policy is subordinate to the statutory scheme. However, Lord Gill went on to add a caveat by stating that the secretary of state ‘may reasonably and appropriately give guidance to decision-makers who have to apply them [section 38(6)] where the planning system is failing to satisfy an unmet need’ (e.g. housing need).

He also went on to state that where policies are out of date by application of paragraph 49 of the NPPF, ‘they [the policies in the statutory development plan] retain their statutory force, but the focus shifts to other material considerations’ and ‘if a planning authority that was in default of a five years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the [NPPF to boost housing supply] could be frustrated’.

The comments of Lord Gill arguably muddy the water by suggesting that local policies in the statutory development plan which are acting to frustrate government policy should be applied with less than ‘full rigour’. The latter comment also appears to go beyond the effect of paragraph 49 by suggesting that in addition to housing policies, environmental and amenity policies should not be applied to frustrate the aim in the NPPF to build more housing.

Arguably this runs counter to the assertion that the NPPF cannot be applied to ‘displace or distort’ the statutory scheme by allowing the NPPF to hold sway over local environmental, amenity and housing policies in order to comply with the stated aim in the NPPF of boosting the supply of housing.

Those acting for developers may wish to draw on Lord Gill’s comments for assistance in persuading decision makers to afford less weight to local plans. All public lawyers should be aware that tension between local and national policy is not easily resolved, even when local policies have statutory primacy.

Stephanie Hall is a barrister at Francis Taylor Building

@FTB_law www.ftbchambers.co.uk