Suffolk Coastal District Council v Hopkins Homes Ltd Secretary of State for Communities and Local Government (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom |
| Judgment Date | 17 March 2016 |
| Neutral Citation | [2016] EWCA Civ 168 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2015/0583 and C1/2015/0894 |
| Date | 17 March 2016 |
[2016] EWCA Civ 168
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE SUPPERSTONE [2015] EWHC 132 (Admin)
MRS JUSTICE LANG [2015] EWHC 410 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Vos
and
Lord Justice Lindblom
Case No: C1/2015/0583 and C1/2015/0894
and
and
Mr Jonathan Clay and Dr Ashley Bowes (instructed by Sharpe Pritchard) for the Appellant
Mr Christopher Lockhart-Mummery Q.C. (instructed by DLA Piper) for the Respondent
Mr Hereward Phillpot Q.C. and Mr Richard Honey (instructed by the Government Legal Department) for the Interested Party
Mr Christopher Young and Mr James Corbet Burcher (instructed by Gateley Plc) for the Appellant
Mr Anthony Crean Q.C. and Mr John Hunter (instructed by Sharpe Pritchard) for the First Respondent
Mr Hereward Phillpot Q.C. and Mr Richard Honey (instructed by the Government Legal Department) for the Second Respondent
Hearing dates: 14 and 15 January 2016
Introduction
This is the judgment of the court.
These two conjoined appeals concern the meaning and effect of government policy in paragraph 49 of the National Planning Policy Framework ("the NPPF"). In particular, they concern the meaning of the requirement in the policy that "[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", and the way in which the policy is to be applied in the making of planning decisions. These questions have been considered several times at first instance without entirely consistent results, but not until now by this court. In both of these cases permission to appeal was granted by Sullivan L.J.. As he acknowledged when granting permission, the wider importance of the issues raised by the appeals is a compelling reason for them to be decided by this court. All counsel who have appeared before us echo that view, and urge us to bring much needed clarity to the meaning of the policy. The benefit of this for local planning authorities, developers and local communities will be obvious.
The two appeals
In the first case the appellant is a local planning authority, Suffolk Coastal District Council. In September 2013 the district council refused planning permission for a development of 26 houses on land at Old High Road in Yoxford. The applicant for planning permission was Hopkins Homes Ltd.. Their appeal against the district council's decision was dismissed by an inspector appointed by the Secretary of State for Communities and Local Government, after an inquiry in February and June 2014. The inspector's decision letter is dated 15 July 2014. Hopkins Homes challenged the decision by an application under section 288 of the Town and Country Planning Act 1990. The challenge succeeded before Supperstone J., who on 30 January 2015 quashed the inspector's decision. Supperstone J.'s order is the subject of the district council's appeal before us. At first instance the Secretary of State did not seek to defend the inspector's decision, having conceded that the inspector had misunderstood and misapplied the policy in paragraph 49. Before us counsel for the Secretary of State have made submissions in support of Supperstone J.'s conclusions on the status of the disputed development plan policies in that case, though not on the other matters in dispute between the district council and Hopkins Homes.
In the second case the appellant is a developer, Richborough Estates Partnership LLP. In August 2013 it made an application for outline planning permission to Cheshire East Borough Council for a development of up to 170 houses on land north of Moorfields in Willaston. The borough council failed to determine the application within the prescribed period. Richborough Estates appealed to the Secretary of State. Its appeal was heard by an inspector at an inquiry in June 2014. In a decision letter dated 1 August 2014 the inspector allowed the appeal and granted planning permission for up to 146 dwellings. His decision was challenged by the borough council. That challenge succeeded before Lang J., who quashed the inspector's decision by an order dated 25 February 2015. The appeal against that order was made not by the Secretary of State but by Richborough Estates. By a respondent's notice the borough council invited this court to uphold Lang J.'s order for additional reasons, but at the hearing it abandoned that position. Submissions were made to us on behalf of the Secretary of State supporting the argument put forward for Richborough Estates.
In both cases the inspector had to establish whether particular policies of the development plan relevant to the proposal were not to be considered "up-to-date" under the policy in paragraph 49 of the NPPF, and, if so, what the consequences for his decision should be.
The NPPF
The NPPF, published on 27 March 2012, contains national planning policy for England.
In the "Ministerial foreword" the Minister for Planning declared that "[the] purpose of planning is to help to achieve sustainable development". "Sustainable", he said, "means ensuring that better lives for ourselves don't mean worse lives for future generations", and "Development means growth", one aspect of which is that "[we] must house a rising population, which is living longer and wants to make new choices". He went on to say:
"Development that is sustainable should go ahead, without delay — a presumption in favour of sustainable development that is the basis for every plan, and every decision. …".
The "Ministerial foreword" concludes by stating that "[by] replacing over a thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning". Some judicial doubt has been expressed about that assertion. As Sullivan L.J. said in Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government [2015] 1 P. & C.R. 3 (in paragraph 22 of his judgment, with which Tomlinson and Lewison L.JJ. agreed), "[views] may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter". In an earlier case in which this court had to consider the meaning of the policy in paragraph 47 of the NPPF, City and District Council of St Albans v Hunston Properties Ltd. [2013] EWCA Civ 1610, Sir David Keene had expressed the view (in paragraph 4 of his judgment, with which Maurice Kay and Ryder L.JJ. agreed), that "[unhappily] … the process of simplification has in certain instances led to a diminution in clarity".
The Government's commitment to a "plan led" planning system is apparent throughout the NPPF. Paragraph 2 in the "Introduction" acknowledges the statutory presumption in favour of the development plan in section 38(6) of the Planning and Compulsory Purchase Act 2004, and the status of the NPPF as another material consideration:
"Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. The [NPPF] must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions. …".
There are several other references to the "plan-led" system: for example, in paragraph 17, which sets out 12 "core land-use planning principles" that "should underpin both plan-making and decision-taking". The first of these "core" principles is that planning should be "… genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area". It adds that "[plans] should be kept up-to-date …" and "should provide a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency".
After the "Introduction" the 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). There are three annexes: "Annex 1: Implementation", "Annex 2: Glossary" and "Annex 3: Documents replaced by this Framework".
Introducing the part of the NPPF devoted to the Government's aim of "Achieving sustainable development", paragraph 6 says that the policies in paragraphs 18 to 219, "taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system". Paragraph 7 identifies "three dimensions to sustainable development: economic, social and environmental". The "social role" is "supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations …". Paragraph 8 says that these three roles are "mutually dependent".
Under the heading "The presumption in favour of sustainable development", paragraph 12 acknowledges that the NPPF "does not change the statutory status of the development plan as the starting point for decision making". It says that "[proposed] development that accords with an up-to-date Local Plan should be...
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