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Still a question of judgement

Still a question of judgement Credit: Roo Reynolds via Flickr

In much work on planning and development issues there’s a call to be made between one interpretation of the law and another, providing eager developers and their lawyers with a rich seam to mine.

This is highlighted in a recent judgement that examines the interpretation given to paragraph 49 of the National Planning Policy Framework (NPPF) in determining planning applications, particularly with regard to how countryside protection policies should be applied in the absence of a five-year supply of housing land. It’s important because one interpretation – the ‘wide’ one that’s been used by many planning inspectors and some judges - meant that developer appeals were often waved through on the grounds that local countryside protection policies counted as ‘policies for the supply of housing’. This had an unfortunate consequence for the countryside: if a council didn’t have a five-year land supply, land was up for grabs for development – including that which should have been protected from unplanned development by the relevant protection policies, now considered out of date by their association with housing.

This, some might say, generous interpretation has meant that since the National Planning Policy Framework came into force in 2012, land speculators and developers have constantly looked to use the planning appeals system to chip away at local countryside protection policies. They have claimed that countryside protection policies are ‘relevant policies for the supply of housing’ and therefore out of date if the local authority lacks a full five-year supply of housebuilding sites. As a result, we have seen these policies in places like the Cotswolds and South Northamptonshire being undermined by planning inspectors at appeal.

But now the Supreme Court has taken a different view. The Supreme Court’s judgement in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council gives us a significant ruling about this interpretation of paragraph 49. In their judgement, the judges supported a narrow definition of ‘policies for the supply of housing’. This means that local policies seeking to prevent development outside town or village boundaries, and/or protect areas of important countryside, are not to be automatically considered out of date in the absence of a five-year housing land supply.

This is good news as it means that countryside or heritage policies are not ‘relevant policies for the supply of housing’ and therefore they cannot be automatically ignored when making decisions.

However, the Court did say that decision-makers should make a judgement over the weight to be afforded to such policies. This weight will vary according to circumstances: ‘for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy[…] It will always be for the decision-maker to judge’ (from an earlier hearing).

There is clearly an opportunity in this context for local communities to demonstrate that significant weight should be applied to environmental and other protection policies even where housing land supply is falling short. CPRE considers that decision makers should be charged with testing any speculative applications that cause loss of or harm to cherished open land against the potential availability of other, less damaging, opportunities that would deliver the same or similar benefits in terms of development.

So, alongside paragraph 14 of the NPPF, the presumption in favour of sustainable development and its ‘tilted balance’ remains in favour of granting planning permission - ‘planning by appeal’ isn’t going away any time soon. Campaigners at all levels will need to continue to fight in the corner of the environment, heritage and Green Belt.

The ruling also highlighted a range of other important issues including the primacy of local development documents, such as the local plan, in the making of decisions: local development plans must be followed unless there is good reason to depart from them. For CPRE this is significant in that it confirms that where a plan is up to date the public should expect the policies and proposals of that plan to be upheld against speculative development.

CPRE’s response to the Housing White Paper has highlighted the need for the Government to alter national policies and guidance to allow the setting of more realistic and less damaging housebuilding targets. In the wake of this ruling, it should also clarify paragraph 14 of the NPPF to ensure that the ‘tilted balance’ does not ride roughshod over Green Belt and environmental and landscape designations. Furthermore, it should clarify (in light of knock-on effects to last December’s Written Ministerial Statement on Neighbourhood Planning) that made or nearly-made neighbourhood plans should be given weight, so it doesn’t frustrate the plans made by local communities.

We look forward to the new Government’s response to the White Paper consultation, expected to follow the general election.


Read more

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Paul Miner on the Housing White Paper


There is clearly an opportunity  for local communities to demonstrate that significant weight should be applied to environmental and other protection policies.

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