Application could be refused despite lack of 5 Years’ Housing Supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) states that:

“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.”

Paragraph 14 of the NPPF provides amongst other things:

“…this means….[unless material considerations indicate otherwise]:…

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: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 [(“the First Condition“)]; or

– specific policies in this Framework indicate development should be restricted [(“the Second Condition“)].”

Paragraph 14 of the NPPF does not supplant, but operates within, the framework for determining planning applications provided by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

The weight to be given to the policy in paragraph 14 itself is a matter for the decision maker provided that he does not act unreasonably.

“The Alternative Case Approach”

Where relevant policies are out-of-date, Paragraph 14 of the NPPF (above) is to be interpreted as providing two alternative cases where it’s presumption in favour of granting planning permission is rebutted.

The use of “or”, rather than “and”, to describe the relationship between the two conditions supports that interpretation.

In the High Court case of Barry Thorpe-Smith & Anor v Secretary of State for Communities And Local Government & Anor [2017] the Inspector had found (i) that the proposed development was not in accordance with certain out-of-date “saved” Local Plan policies; and (ii) that notwithstanding the absence of a 5 year housing land supply in the Council’s area and the guidance in paragraph [14] of the NPPF, the benefits of providing the proposed housing did not indicate that planning permission should be granted.

Applying “The Alternative Case Approach”

The court said that because the Inspector had decided that the Second Condition applied, he had no need to consider “alternatively” whether the First Condition also did.

The remaining question then was whether there was any other “material consideration” that indicated that the Inspector should override the saved development plan and grant permission for the development. In fact he found that “there [were] no other material considerations that suggest[ed] it should be allowed” given that it was not “sustainable development” anyway.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.