Earlier today the Supreme Court handed down its long awaiting judgment in the cases of Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council  UKSC 36.
The judgment clarifies both the meaning of, and the correct approach to be taken to, paragraph 49 of the National Planning Policy Framework. By way of a reminder, this is the paragraph of the NPPF which states that 'relevant policies for the supply of housing' are to be treated as out of date in circumstances where a local authority does not have a five year housing land supply.
The Supreme Court's conclusions, which have been clearly summarised by Francis Taylor Building in the article that this post links to, provides a salutary lesson in the need to avoid taking an overly legalistic approach to interpreting planning policy.
In short, the Court found that:
•The NPPF is intended to be guidance, which constitutes a material consideration for the local planning authority when making decisions. It does not, and indeed cannot, alter or over-rule the primacy of a local authorities statutory development plan.
•The phrase 'relevant policies for the supply of housing' in para 49 of the NPPF is intended to refer to housing policies, as opposed to any broader interpretation. However, this is not overly restrictive given that...
•... the primary purpose of paragraph 49 is to act as a trigger for when the 'tilted balance' set out in the second part of paragraph 14 of the NPPF should be applied. As such, "the important question is not how to define individual policies, but whether the result is a five-year supply in accordance with objectives set in paragraph 47. If there is a failure in that respect...The shortfall is enough to trigger the operation of the second part of paragraph 14".
•Where this is the case then the weight to be given to development plan policies in the circumstances is a matter of planning judgement for the decision maker.
If I were to read an overall theme into the tone of the Judgment, it is that the Supreme Court is becoming a little bit exasperated by the overly legalistic approach that is sometimes taken to the interpretation of planning policy.
We were reminded on several occasions that statements of policy are not statute and should not be treated as if they were. Whilst the interpretation of policy is appropriate for judicial analysis, it calls for common sense approach, as opposed to an overly legalistic one. A distinction needs to be drawn between issues of interpretation, in which the court can intervene, and issues of judgment or application - which are to be left to the decision maker.
Aside from the fact that this reminds me of an episode of 'Yes Minister' *, it must be reassuring (and somewhat heartening) for developers and local authorities alike, that even the highest Court in the land can get fed up with lawyers. The warning against an 'overly legalistic' approach to interpretation is one we should all take to heart, and will certainly be music to the ears of the Campaign for Plain English!
(* one must always be careful not to confuse the administration of policy with the policy of administration)
If there is not a five year housing land supply, and if there is a relevant policy for the supply of housing involved, then the “tilted balance” in the second bullet point in paragraph 14 of the NPPF is applicable (subject to the exception linked to footnote 9), as an other material consideration. Then, consideration should be given to what weight to give to all relevant development plan policies (including housing supply policies and restrictive/counterpart policies) in the s38(6) balance in light of the need for housing and there being no five year housing land supply. The weight to be given to development plan policies in the circumstances is a matter of pure planning judgement for the decision-maker in accordance with ordinary principles.