You might have thought that the recent Supreme Court verdict on the application and meaning of NPPF paragraph’s 14 and 49 would clarify this very important matter of planning principal. Prior to the Supreme Courts deliberations, it seems that earlier Appeal Court rulings had relied on a broad interpretation of Paragraph 49 allowing two housing proposals, one in Suffolk and the other in Cheshire.

So, having read around this matter and having looked at various comments on the situation from a number of eminent planning practitioners and legal planning experts, it would appear the Supreme Court ruling itself is open to differing interpretations. So that’s helpful then!

It seems the judgement says it is correct to apply a narrow interpretation of Paragraph 49 that only Local Plan Policies that deal with the supply of housing land should be viewed as out of date as a result of a lack of a five year housing land supply. Lord Carnwarth stated “… On that reading a non-housing policy which may be objectively up to date, in the sense of it being recently adopted and itself consistent with the framework, may have to be treated as notionally “out of date” solely for the purpose of Paragraph 14”. Lord Carnwarth went on to observe that the crux of the matter is not how other development plan policies are set out, but whether there is a five year supply in accordance with Paragraph 47.

The judgement can be read as suggesting that a short fall should trigger the NPPF presumption in favour of granting permission as set out in paragraph 14. It indicates this should take precedent over other plan policies so long as the adverse impacts of so doing would “significantly and demonstrably” outweigh the benefits when assessed against the NPPF as whole or specific NPPF policy objectives indicating development should be restricted. Conversely, an up to date five year supply may actually take precedent over a generally out of date Development Plan.

So where does this take us. A lack of a five year supply may give planning authorities the comfort they can refuse your application which conflicts with other restrictive plan polices. Alternatively and this is the position we think will prevail, the judgement reconfirms the key importance of the presumption in favour and that it is the narrow interpretation of focusing on the importance of Paragraph 14 that will continue to underpin the grant of planning permission where the development plan is out of date.

For more information please contact:

John Foddy, Managing Director