Suffolk Coastal District Council v Hopkins Homes Ltd; Richborough Estates Partnership LLP v Cheshire East Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Neuberger,Lord Clarke,Lord Hodge,Lord Gill |
| Judgment Date | 10 May 2017 |
| Neutral Citation | [2017] UKSC 37 |
| Date | 10 May 2017 |
| Court | Supreme Court |
Lord Neuberger, President
Lord Clarke
Lord Carnwath
Lord Hodge
Lord Gill
THE SUPREME COURT
Easter Term
On appeals from: [2016] EWCA Civ 168, [2015] EWHC 132 (Admin) and [2015] EWHC 410 (Admin)
Appellants ( Cheshire and Suffolk)
Martin Kingston QC
Hugh Richards
Jonathan Clay
Dr Ashley Bowes
(Instructed by Sharpe Pritchard LLP)
Respondent ( Hopkins)
Christopher Lockhart-Mummery QC
Zack Simons
(Instructed by DLA Piper UK LLP (Birmingham))
Respondent ( Richborough)
Christopher Young
James Corbet Burcher
(Instructed by Town Legal LLP)
Respondent (SSCLG)
Hereward Phillpot QC
Richard Honey
(Instructed by The Government Legal Department)
Heard on 22 and 23 February 2017
( with whom Lord Neuberger, Lord Clarke, Lord Hodge and Lord Gill agree)
The appeals relate to the proper interpretation of paragraph 49 of the National Planning Policy Framework ("NPPF"), which is in these terms:
"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 Court of Appeal observed that the interpretation of this paragraph had been considered by the Administrative Court on seven separate occasions between October 2013 and April 2015 with varying results. The court had been urged by all counsel "to bring much needed clarity to the meaning of the policy". Notwithstanding the clarification provided by the impressive judgment of the court (given by Lindblom LJ), controversy remains. The appeals provide the opportunity for this court not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.
Both appeals relate to applications for housing development, one at Yoxford in the administrative area of the Suffolk Coastal District Council ("the Yoxford site"), and the other near Willaston in the area of Cheshire East Borough Council ("the Willaston site"). In the first the council's refusal of permission was upheld by the inspector on appeal, but his refusal was quashed in the High Court (Supperstone J), and that decision was confirmed by the Court of Appeal. In the second, the council failed to determine the application, and the appeal was allowed by the inspector. The council's challenge succeeded in the High Court (Lang J), but that decision was reversed by the Court of Appeal, the judgment of the court being given by Lindblom LJ. Both councils appeal to this court.
The relevant statutory provisions are found in the Town and Country Planning Act 1990 ("the 1990 Act") and the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").
Part 2 of the 2004 Act deals with "local development". Each local planning authority in England is required to "keep under review the matters which may be expected to affect the development of their area or the planning of its development" (2004 Act section 13), and to prepare a "local development scheme", which (inter alia) specifies the local development documents which are to be "development plan documents" (section 15). The authority's local development documents "must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area" (section 17). "Local development documents" are defined by regulations made under section 17(7). In short they are documents which contain statements as to the development and use of land which the authority wishes to encourage, the allocation of sites for particular types of development, and development management and site allocations policies intended to guide determination of planning applications. Together they comprise the "development plan" or "local plan" for the area ( Town and Country Planning (Local Planning) (England) Regulations ( SI 2012/767) regulations 5 and 6).
In preparing such documents, the authority must have regard (inter alia) to "national policies and advice contained in guidance issued by the Secretary of State" (section 19(2)). Every development plan document must be submitted to the Secretary of State for "independent examination", one of the purposes being to determine whether it complies with the relevant statutory requirements, including section 19 (section 20(1)(5)(a)). The Secretary of State may, if he thinks that a local development document is "unsatisfactory", direct the local planning authority to modify the document (section 21). Section 39 gives statutory force to the concept of "sustainable development" (undefined). Any person or body exercising any function under Part 2 in relation to local development documents must exercise it "with the objective of contributing to the achievement of sustainable development", and for that purpose must have regard to "national policies and advice contained in guidance issued by the Secretary of State …" An adopted plan may be challenged on legal grounds by application to the High Court made within six weeks of the date of adoption, but not otherwise (section 113). Schedule 8 contained transitional provisions providing generally for a transitional period of three years, after which the plans produced under the previous system ceased to have effect subject to the power of the Secretary of State to "save" specified policies by direction.
Provision is made in the 1990 and 2004 Acts for the development plan to be taken into account in the handling of planning applications:
"In dealing with such an application the authority shall have regard to —
(a) the provisions of the development plan, so far as material to the application,
(b) any local finance considerations, so far as material to the application, and
(c) any other material considerations."
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Unlike the development plan provisions, these sections contain no specific requirement to have regard to national policy statements issued by the Secretary of State, although it is common ground that such policy statements may where relevant amount to "material considerations".
The principle that the decision-maker should have regard to the development plan so far as material and "any other material considerations" has been part of the planning law since the Town and Country Planning Act 1947. The additional weight given to the development plan by section 38(6) reproduces the effect of a provision first seen in the Planning and Compensation Act 1991 section 54A. In City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, the equivalent provision (section 18A of the Town and Country Planning (Scotland) Act 1972) was described by Lord Hope (p 1450B) as designed to "enhance the status" of the development plan in the exercise of the planning authority's judgment. Lord Clyde spoke of it as creating "a presumption" that the development plan is to govern the decision, subject to "material considerations", as for example where "a particular policy in the plan can be seen to be outdated and superseded by more recent guidance". However, the section had not touched the well-established distinction between the respective roles of the decision-maker and the court:
"It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker …" (p 1458)
An appeal against a refusal of planning permission lies to the Secretary of State, who is subject to the same duty in respect of the development plan (1990 Act sections 78, 79(4)). Regulations under section 79(6) and Schedule 6 now provide for most categories of appeals, including those here in issue, to be determined, not by the Secretary of State, but by an "appointed person" (normally referred to as a planning inspector). The decision on appeal may be challenged on legal grounds in the High Court (section 288).
The Framework (or "NPPF") was published on 27 March 2012. One purpose, in the words of the foreword, was to "(replace) over a thousand pages of national policy with around 50, written simply and clearly", thus "allowing people and communities back into planning". The "Introduction" explains its status under the planning law:
"Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The National Planning Policy Framework must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions. …"
NPPF is divided into three main parts: "Achieving sustainable development" (paragraphs 6 to 149), "Plan-making" (paragraphs 150 to 185) and "Decision-taking" (paragraphs 186 to 207). Paragraph 7 refers to the "three dimensions to sustainable development: economic, social and environmental". ...
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