Paragraph 49 of the National Planning Policy Framework (“NPPF”) says:
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 mentions the presumption in favour of sustainable development. It then says this entails for determinations:
approving development proposals that accord with the development plan without delay; and
where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: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; or
– specific policies in this Framework indicate development should be restricted.
When local authorities do not have a 5 year housing land supply how do paragraphs 14 and 49 of the NPPF apply?
This was the position in the Supreme Court case of Suffolk Coastal District Council -v- Hopkins Homes Ltd & Anor .
The Supreme Court applied a 2 stage process.
Firstly you had to apply Paragraph 49.
“Policies for the supply of housing” had to be applied narrowly. Paragraph 49 only considered “housing supply policies” “out of date”. It did not to extend to presume out date other policies that merely “affected” housing supply.
It was necessary to assess whether in fact there was a 5 year deliverable land supply.
Whatever policies caused the lack of 5 year supply such a lack, if it existed, would invoke paragraph 14.
Secondly, if Paragraph 14 applied, the application should receive planning permission unless:
– adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole; or
– specific policies in the NPPF indicated that development should be restricted. These are not only restrictive policies actually in the NPPF. They could include green belt and other development plan policies merely referred to in the NPPF.
This is an issue of planning judgment. It is for the decision maker to decide how much weight it to be given to other policies in the development plan.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.