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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Richborough Estates Ltd v Secretary of State for Housing, Communities And Local Government [2018] EWHC 33 (Admin) (12 January 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/33.html Cite as: [2018] PTSR 1168, [2018] EWHC 33 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) RICHBOROUGH ESTATES LIMITED (2) REDROW HOMES LIMITED (3) LINDEN LIMITED (4) WAINHOMES LIMITED (5) WILLIAM DAVIS LIMITED (6) MARTIN GRANT HOMES LIMITED (7) ACORN PROPERTY GROUP (8) HOPKINS HOMES LIMITED (9) CROUDACE LIMITED (10) NORTH OAK HOMES LIMITED (11) BARGATE HOMES LIMITED (12) LARKFLEET LIMITED (13) WEALDEN HOMES (14) DBA HOMES LIMITED (15) F W JOHNSONS LIMITED (16) ROBERT HITCHINS LIMITED (17) CATESBY ESTATES LIMITED (18) WELBECK STRATEGIC LAND II LIMITED (19) SOUTH WEST STRATEGIC DEVELOPMENT LIMITED (20) TEM LIMITED (21) HIMOR GROUP LIMITED (22) MAXIMUS LIMITED (23) GREVAYNE PROPERTIES LIMITED (24) BEECHCROFT LIMITED (25) ALLASTON DEVELOPMENTS LIMITED |
Claimants |
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- and – |
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SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT |
Defendant |
____________________
Nathalie Lieven QC and Richard Moules (instructed by Government Legal Department) for the Defendant
Hearing dates: 7th – 8th November 2017
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Crown Copyright ©
MR JUSTICE DOVE :
Factual background
"49 Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant polices 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."
"14…where the development plan is absent, silent or relevant polices are out-of-date, granting planning permission unless:
-any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole…"
"32 The contentious words are "[relevant] policies for the supply of housing". In our view the meaning of those words, construed objectively in their proper context, is "relevant policies affecting the supply of housing". This corresponds to the "wider" interpretation, which was advocated on behalf of the Secretary of State in these appeals. Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A "relevant" policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority's area or because it bears upon the principle of the site in question being developed for housing. The meaning of the phrase "for the supply" is also, we think, quite clear. The word "for" is one of the more versatile prepositions in the English language. It has a large number of common meanings. These include, according to the Oxford Dictionary of English, 2nd edition (revised), "affecting, with regard to, or in respect of". A "supply" is simply a "stock or amount of something supplied or available for use" – again, the relevant definition in the Oxford Dictionary of English. The "supply" with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable "five-year supply of deliverable housing sites". Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does no violence at all to the language. On the contrary, it is to construe the policy exactly as it is written.
33 Our interpretation of the policy does not confine the concept of "policies for the supply of housing" merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.
34 The "narrow" interpretation of the policy, in which the words "[relevant] policies for the supply of housing" are construed as meaning "[relevant] policies providing for the amount and distribution of new housing development and the allocation of sites for such development", or something like that, is in our view plainly wrong. It is both unrealistic and inconsistent with the context in which the policy takes its place. It ignores the fact that in every development plan there will be policies that complement or support each other. Some will promote development of one type or another in a particular location, or by allocating sites for particular land uses, including the development of housing. Others will reinforce the policies of promotion or the site allocations by restricting development in parts of the plan area, either in a general way – for example, by preventing development in the countryside or outside defined settlement boundaries – or with a more specific planning purpose – such as protecting the character of the landscape or maintaining the separation between settlements.
35 Restrictive policies, whether broadly framed or designed for some more specific purpose, may – we stress "may" – have the effect of constraining the supply of housing land. If they do have that effect, they may – again, we emphasize "may" – act against the Government's policy of boosting significantly the supply of housing land. If a local planning authority is unable to demonstrate the requisite five-year supply of housing land, both the policies of its local plan that identify sites for housing development and policies restrictive of such development are liable to be regarded as not "up-to-date" under paragraph 49 of the NPPF – and "out-of-date" under paragraph 14. Otherwise, government policy for the delivery of housing might be undermined by decisions in which development plan policies that impede a five-year supply of housing land are treated as "up-to-date"."
"Neighbourhood Planning
1. Neighbourhood planning was introduced by the Localism Act 2011, and is an important part of the Government's manifesto commitment to let local people have more say on local planning. With over 230 neighbourhood plans in force and many more in preparation, they are already a well-established part of the English planning system. Recent analysis suggests that giving people more control over development in their area is helping to boost housing supply – those plans in force that plan for a housing number have on average planned for approximately 10% more homes than the number for that area set out by the relevant local planning authority.
2. The Government confirms that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted. However, communities who have been proactive and worked hard to bring forward neighbourhood plans are often frustrated that their plan is being undermined because their local planning authority cannot demonstrate a five-year land supply of deliverable housing sites.
3. This is because Paragraph 49 of the National Planning Policy Framework states that if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites relevant policies for the supply of housing should not be considered up-to-date, and housing applications should be considered in the context of the presumption in favour of sustainable development.
4. As more communities take up the opportunity to shape their area we need to make sure planning policy is suitable for a system with growing neighbourhood plan coverage. Building on proposals to further strengthen neighbourhood planning through the Neighbourhood Planning Bill, I am today making clear that where communities plan for housing in their area in a neighbourhood plan, those plans should not be deemed to be out-of-date unless there is a significant lack of land supply for housing in the wider local authority area. We are also offering those communities who brought forward their plans in advance of this statement time to review their plans.
5. This means that relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be 'out-of-date' under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made:
- This written ministerial statement is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;
- the neighbourhood plan allocates sites for housing; and
- the local planning authority can demonstrate a three-year supply of deliverable housing sites.
6. This statement applies to decisions made on planning applications and appeals from today. This statement should be read in conjunction with the National Planning Policy Framework and is a material consideration in relevant planning decisions.
7. My Department will be bringing forward a White Paper on Housing in due course. Following consultation, we anticipate the policy for neighbourhood planning set out in this statement will be revised to reflect policy brought forward to ensure new neighbourhood plans meet their fair share of local housing need and housing is being delivered across the wider local authority area. It is, however, right to take action now to protect communities who have worked hard to produce their neighbourhood plan and find the housing supply policies are deemed to be out-of-date through no fault of their own." (paragraph numbers added for ease of reference)
"Background
This paper provides an update on housing delivery progress in areas where neighbourhood plans have allocated sites for new homes. During May and June 2015 the Department for Communities and Local Government gathered data from local authorities, qualifying bodies and other published sources on all the areas with a made neighbourhood plans that had both a) allocated housing sites and b) been in force for over six months. 20 plans fulfilled these criteria, but complete data (on Local Plan allocations, neighbourhood plan allocations and local planning permissions) was only available for the 16 areas covered in the case studies below…
The Local Plan Housing Number in the table below is the sum of all of the allocations made through adopted or emerging Local Plans for the neighbourhood areas in the sample. The over and above allocation figure is the difference between the housing numbers in the Local Plan and the neighbourhood plan in all but two cases (Thame and Winsford) where relevant additional commitments have been included, in accordance with the advice of the local authority.
Local Plan Housing Number | Neighbourhood Plan Housing Number | Number over and above allocation |
8,185 | 9,076 | 891 (11%) |
Across the 16 areas, there is an overall additional neighbourhood plan housing allocation of 891, representing 11% more housing than allocated by the relevant Local Plans…
The figures appear to suggest that planning permissions are advancing rapidly. 68% of the aggregate Local Plan housing allocation have either been granted or were at live application stage, only 6-20 months into the lifetimes of the neighbourhood plans. However, we should also be mindful at this stage that:
• A large proportion of the 'number over and above allocations' total comes from three plans (Broughton Astley, Winsford and Winslow), although 10 of the 16 neighbourhood plans considered do appear to allocate more that the Local Plan.
• The baseline for comparison is the most recent Local Plan or Strategic Housing Land Availability Assessment, which in some cases is relatively old.
• Not all permissions will necessarily result in the construction of new homes."
"2. During May and June 2016 the Department for Communities and Local Government gathered data from local authorities, qualifying bodies and other published sources on all the areas with a made neighbourhood plans that had both:
a) provided housing numbers; and
b) been in force for over three months.
3. The cumulative number of plans, including those assessed in October 2015 is 50, but complete data (on local authority provided number, neighbourhood plan housing number and local planning permissions) was only available for the 39 areas covered in the table and case studies below…
5. The number of homes in the sample of 39 neighbourhood plans has been compared to the closest available number to a Local Plan number for their area, at the time the neighbourhood plan was produced. The local authority provided number in the table below is derived from of all of the housing numbers made through adopted, emerging and draft Local Plans as well as the strategic housing land availability assessment and data directly from the local planning authority for the neighbourhood areas in the sample. All local authority data has been verified by the Local Planning Authority. The over and above allocation figure is the difference between the housing numbers in the local authority provided number and the neighbourhood plan.
Table 1 – Comparison of neighbourhood plan numbers and Local Authority Provided numbers in the sample of neighbourhood plan areas
Local Authority Provided Number | Neighbourhood Plan Housing Number | Number over and above Local Authority Provided Number |
11,800 | 13,200 | 1,400 (11%) |
6. In considering these numbers, the following should be noted:
• the numbers in neighbourhood plans are not always presented in a way that is consistent, for example, some neighbourhood plans include sites that already have planning permission;
• the local authorities were asked to provide the data in May and June 2016, rather than at the time the various neighbourhood plans were produced, though we understand that they are the numbers that were provided by the local planning authority to the neighbourhood planning group during the preparation of their plan; and
• the Local Authority Provided Numbers do not all relate to numbers in an adopted Local Plan. This is because in some cases there was no up to date Local Plan. In these cases neighbourhood plans were instead provided numbers in emerging Local Plans or strategic housing land availability assessment. These numbers have therefore not been subject to a Planning Inspectorate examination, which could potentially mean that the housing numbers change (including increasing) in the final Local Plan.
7. Overall this analysis gives further weight to early findings suggesting that neighbourhood plans that provided a housing number have on average planned for approximately 10% (rounded down) more homes than the Local Plan housing figure (or an expectation set out by the local planning authority) for those areas."
"19. The court heard some discussion about the source of the Secretary of State's power to issue national policy guidance of this kind. The agreed Statement of Facts quoted without comment a statement by Laws LJ (R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] 1 WLR 3923, para 12) that the Secretary of State's power to formulate and adopt national planning policy is not given by statute, but is "an exercise of the Crown's common law powers conferred by the royal prerogative." In the event, following a query from the court, this explanation was not supported by any of the parties at the hearing. Instead it was suggested that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, paras 140-143 per Lord Clyde). This is reflected both in specific requirements (such as in section 19(2) of the 2004 Act relating to plan-preparation) and more generally in his power to intervene in many aspects of the planning process, including (by way of call-in) the determination of appeals.
20. In my view this is clearly correct. The modern system of town and country planning is the creature of statute (see Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 140-141). Even if there had been a pre-existing prerogative power relating to the same subject-matter, it would have been superseded (see R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening) [2017] 2 WLR 583, para 48). (It may be of interest to note that the great Case of Proclamations (1610) 12 Co Rep 74, which was one of the earliest judicial affirmations of the limits of the prerogative (see Miller para 44) was in one sense a planning case; the court rejected the proposition that "the King by his proclamation may prohibit new buildings in and about London …".)
21. Although planning inspectors, as persons appointed by the Secretary of State to determine appeals, are not acting as his delegates in any legal sense, but are required to exercise their own independent judgement, they are doing so within the framework of national policy as set by government. It is important, however, in assessing the effect of the Framework, not to overstate the scope of this policy-making role. The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than "guidance" and as such a "material consideration" for the purposes of section 70(2) of the 1990 Act (see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWHC 97 (Admin); [2011] 1 P & CR 22, para 50 per Lindblom J). It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme."
"22. The correct approach to the interpretation of a statutory development plan was discussed by this court in Tesco Stores Ltd v Dundee City Council (ASDA Stores Ltd intervening) [2012] UKSC 13; 2012 SLT 739. Lord Reed rejected a submission that the meaning of the development plan was a matter to be determined solely by the planning authority, subject to rationality. He said:
"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others … policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context." (para 18)
He added, however, that such statements should not be construed as if they were statutory or contractual provisions: "Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann) …" (para 19)
23. In the present appeal these statements were rightly taken as the starting point for consideration of the issues in the case. It was also common ground that policies in the Framework should be approached in the same way as those in a development plan. However, some concerns were expressed by the experienced counsel before us about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself (see paras 27ff below). This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader. Some further comment from this court may therefore be appropriate.
24. In the first place, it is important that the role of the court is not overstated. Lord Reed's application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any "suitable site" within or linked to the existing centres (para 5). The short point was the meaning of the word "suitable" (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed identified as one of textual interpretation, "logically prior" to the exercise of planning judgment (para 21). As he recognised (see para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis.
25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome. (As will appear, the present can be seen as such a case.) Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local. As I observed in the Court of Appeal (Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence (see Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)
26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two."
"54. The argument, here and below, has concentrated on the meaning of paragraph 49, rather than paragraph 14 and the interaction between the two. However, since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the "tilted balance" under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are "significantly and demonstrably" outweighed by the adverse effects, or where "specific policies" indicate otherwise. (See also the helpful discussion by Lindblom J in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), paras 42ff)
55. It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgement, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgement, not dependent on issues of legal interpretation.
56. If that is the right reading of paragraph 14 in general, it should also apply to housing policies deemed "out-of-date" under paragraph 49, which must accordingly be read in that light. It also shows why it is not necessary to label other policies as "out-of-date" merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgement for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the "tilted balance".
Paragraph 49
57. Unaided by the legal arguments, I would have regarded the meaning of paragraph 49 itself, taken in context, as reasonably clear, and not susceptible to much legal analysis. It comes within a group of paragraphs dealing with delivery of housing. The context is given by paragraph 47 which sets the objective of boosting the supply of housing. In that context the words "policies for the supply of housing" appear to do no more than indicate the category of policies with which we are concerned, in other words "housing supply policies". The word "for" simply indicates the purpose of the policies in question, so distinguishing them from other familiar categories, such as policies for the supply of employment land, or for the protection of the countryside. I do not see any justification for substituting the word "affecting", which has a different emphasis. It is true that other groups of policies, positive or restrictive, may interact with the housing policies, and so affect their operation. But that does not make them policies for the supply of housing in the ordinary sense of that expression.
58. In so far as the paragraph 47 objectives are not met by the housing supply policies as they stand, it is quite natural to describe those policies as "out-of-date" to that extent. As already discussed, other categories of policies, for example those for employment land or transport, may also be found to be out-of-date for other reasons, so as to trigger the paragraph 14 presumption. The only difference is that in those cases there is no equivalent test to that of the five-year supply for housing. In neither case is there any reason to treat the shortfall in the particular policies as rendering out-of-date other parts of the plan which serve a different purpose.
59. This may be regarded as adopting the "narrow" meaning, contrary to the conclusion of the Court of Appeal. However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within the expression. The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.
60. The Court of Appeal was therefore right to look for an approach which shifted the emphasis to the exercise of planning judgement under paragraph 14. However, it was wrong, with respect, to think that to do so it was necessary to adopt a reading Page 25 of paragraph 49 which not only changes its language, but in doing so creates a form of non-statutory fiction. On that reading, a non-housing policy which may objectively be entirely up-to-date, in the sense of being recently adopted and in itself consistent with the Framework, may have to be treated as notionally "out-of-date" solely for the purpose of the operation of paragraph 14.
61. There is nothing in the statute which enables the Secretary of State to create such a fiction, nor to distort what would otherwise be the ordinary consideration of the policies in the statutory development plan; nor is there anything in the NPPF which suggests an intention to do so. Such an approach seems particularly inappropriate as applied to fundamental policies like those in relation to the Green Belt or Areas of Outstanding Natural Beauty. No-one would naturally describe a recently approved Green Belt policy in a local plan as "out of date", merely because the housing policies in another part of the plan fail to meet the NPPF objectives. Nor does it serve any purpose to do so, given that it is to be brought back into paragraph 14 as a specific policy under footnote 9. It is not "out of date", but the weight to be given to it alongside other material considerations, within the balance set by paragraph 14, remains a matter for the decision-maker in accordance with ordinary principles."
"A written ministerial statement on 12 December 2016 set out how planning applications and appeals should be determined in circumstances where the local planning authority cannot demonstrate a 5-year supply of housing, but there is a neighbourhood plan in force where all of the following criteria apply:
the written ministerial statement is less than 2 years old, or the neighbourhood plan been part of the development plan for 2 years or less;
the neighbourhood plan allocates sites for housing; and
the local planning authority can demonstrate a 3-year supply of deliverable housing sites against its 5 year housing requirement.
The written ministerial statement stated that in such circumstances, relevant policies for the supply of housing in the neighbourhood plan should not be deemed to be 'out-of-date' under paragraph 49 of the National Planning Policy Framework.
Subsequently, the Supreme Court in Suffolk Coastal District Council v Hopkins Homes Ltd and SSCLG; Richborough Estates Partnership LLP and SSCLG v Cheshire East Borough Council [2017] UKSC 37 has explained that it is not necessary to determine whether a policy is a "relevant policy for the supply of housing" in paragraph 49 of the National Planning Policy Framework, and deem it "out-of-date" in order to determine the weight that is attached to that policy. Weight is a matter of planning judgement for the decision maker. In circumstances where the development plan is absent, silent or relevant policies are out of date, paragraph 14 of the Framework states that permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, or restrictive policies in the Framework indicate development should be restricted.
In this situation, when assessing the adverse impacts of the proposal against the policies in the Framework as a whole, decision makers should include within their assessment those policies in the Framework that deal with neighbourhood planning. This includes paragraphs 183-185 of the Framework; and paragraph 198.
Paragraph 198 of the Framework states that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted. In determining applications, decision-makers should take into account the impact of granting permission for an application that conflicts with a neighbourhood plan.
Where the criteria in the written ministerial statement apply, decision makers should give significant weight to the neighbourhood plan notwithstanding the fact that the local planning authority cannot demonstrate a 5-year supply of deliverable housing sites.
Paragraph: 083 Reference ID: 41-083-20170810"
"Neighbourhood plans
183. Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need. Parishes and neighbourhood forums can use neighbourhood planning to:
• set planning policies through neighbourhood plans to determine decisions on planning applications; and
• grant planning permission through Neighbourhood Development Orders and Community Right to Build Orders for specific development which complies with the order.
184. Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community. The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood plans should reflect these policies and neighbourhoods should plan positively to support them. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies.
185. Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over
existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. Local planning authorities should avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation...
198. Where a Neighbourhood Development Order has been made, a planning application is not required for development that is within the terms of the order. Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted."
The Claimants' Grounds in brief
Ground 1
"34 Mr Drabble relies upon this reasoning for the proposition that in exercising his common law power to make planning policy the Secretary of State was not obliged to have regard to this or that consideration, as he would be if his power were derived from a statute which told him what to consider; if he chose to make new policy he was bound, of course, by the core values of reason, fairness and good faith, but beyond that his choice of policy content was very much for him to decide.
35 Mr Forsdick's response is to insist that while the source of the Secretary of State's power is the common law, the context in which it is being exercised is a carefully drawn statutory regime; so that, for proper planning purposes, the considerations which the judge held were left out of account were indeed "obviously material".
36 We would certainly accept that the statutory planning context to some extent constrains the Secretary of State. It prohibits him from making policy which, as we have put it in dealing with the principal issue in the case, would countermand or frustrate the effective operation of section 38(6) or section 70(2) . It would also prevent him from introducing into planning policy matters which were not proper planning considerations at all. Subject to that, his policy choices are for him. He may decide to cover a small, or a larger, part of the territory potentially in question. He may address few or many issues. The planning legislation establishes a framework for the making of planning decisions; it does not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.
37 In those circumstances the Secretary of State was not in our judgment obliged to go further than he did into the specifics described by the judge, and in consequence is not to be faulted for a failure to have regard to relevant considerations in formulating the policy set out in the WMS."
i) The question of the interpretation of a planning policy is a question of law for the court: see Tesco Stores v Dundee City Council [2012] UKSC 13; [2012] PTSR 983.
ii) The task of interpretation should not be undertaken as if the planning policy were a statute or a contract; the approach must recognise that planning policies will contain broad statements of policy which may, superficially, conflict and require to be balanced in reaching a decision: see Tesco Stores at paragraph 19 and Hopkins Homes (in the Supreme Court) at paragraph 25. Planning policies are designed to shape practical decision making and they should be interpreted with that practical purpose clearly in mind. They have to applied by planning professionals and the public for whose benefit they exist, and are primarily addressed to that audience.
iii) It is important that the language of the policy is read in its proper context when textual interpretation is required: see Tesco Stores at paragraphs 18 and 21. That context will include the subject matter of the policy and its planning objectives. It will also include the wider policy framework within which the policy sits and to which it relates.
iv) Often policies will call for judgment to exercised as to how they apply in the particular factual circumstances of the case: see paragraphs 19 and 21 of Tesco Stores. It is important to distinguish between the interpretation of policy which requires judicial analysis, and the exercise of judgment in the application of policy which is a matter for the decision-maker: see Hopkins Homes (in the Supreme Court) at paragraph 26.
Ground 2
"Recent analysis suggests that giving people more control over development in their area is helping to boost housing supply – those plans in force that plan for a housing number have on average planned for approximately 10% more homes than the number for that area set out by the relevant local planning authorities."
Ground 3
Ground 4
Ground 5
"a. any change to National Planning Policy for housing, or alternatively,
b. any major change for National Policy for housing or, alternatively,
c. any major change to the policy pertaining to five year housing supply in national policy."
"But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by Lord Diplock in O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue… The test of that is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the government to depart from the practice in this case. Legitimate expectations such as are now under consideration will always relate to a benefit or privilege to which the claimant has no right in private law, and it may even be to one which conflicts with his private law rights. In the present case the evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly, in my opinion, if there had been no question of national security involved, the appellants would have had a legitimate expectation that the minister would consult them before issuing the instruction of 22 December 1983. The next question, therefore, is whether it has been shown that consideration of national security supersedes the expectation."
"27 Legitimate expectation is now a well-known public law headline. But its reach in practice is still being explored. In one of the leading cases, Ex p Coughlan [2001] QB 213 , Lord Woolf MR as he then was, giving the judgment of the court, described it as "still a developing field of law" (paragraph 59). The cases show that put broadly (there are refinements) it encompasses two kinds. There is procedural legitimate expectation, and there is substantive legitimate expectation. But in certain types of case these terms are more elusive than they appear. These appeals therefore call for some account of the material principles, however well trodden the ground. I acknowledge that much of the ground is at the foothills. But the path falters a little further up.
28 Legitimate expectation of either kind may (not must) arise in circumstances where a public decision-maker changes, or proposes to change, an existing policy or practice. The doctrine will apply in circumstances where the change or proposed change of policy or practice is held to be unfair or an abuse of power: see for example Ex p Coughlan paragraphs 67, Ex p Begbie [2000] 1 WLR 1115, 1129F-H. The court is generally the first, not the last, judge of what is unfair or abusive; its role is not confined to a back-stop review of the primary decision-maker's stance or perception: see in particular Ex p Guinness Plc [1990] 1 QB 146 . Unfairness and abuse of power march together: see (in addition to Coughlan and Begbie ) Preston [1985] AC 835 , Ex p Unilever [1996] STC 681 , 695 and Rashid [2005] INRL 550 paragraph 34. But these are ills expressed in very general terms; and it is notorious (and obvious) that the ascertainment of what is or is not fair depends on the circumstances of the case. The excoriation of these vices no doubt shows that the law's heart is in the right place, but it provides little guidance for the resolution of specific instances.
Procedural Legitimate Expectation
29 There is a paradigm case of procedural legitimate expectation, and this at least is in my opinion clear enough, whatever the problems lurking not far away. The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy: see CCSU [1985] AC 374 at 408G — H (Lord Diplock's category (b)(ii)), Ex p Baker [1995] 1 AER 73 at 89 (Simon Brown LJ's category 4, acknowledged by him to equate with Lord Diplock's category (b)(ii): see p. 90), Ex p Coughlan at paragraph 57, p.242A-C: Lord Woolf's category (b)). I need not for present purposes set out these taxonomies.
30 In the paradigm case the court will not allow the decision-maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision-maker, or other countervailing public interest such as the imperative of national security (as in CCSU ). There may be questions such as whether the claimant for relief must himself have known of the promise or practice, or relied on it. It is unnecessary for the purpose of these appeals to travel into those issues; I venture only to say that there are in my view significant difficulties in the way of imposing such qualifications. My reason is that in such a procedural case the unfairness or abuse of power which the court will check is not merely to do with how harshly the decision bears upon any individual. It arises because good administration ("by which public bodies ought to deal straightforwardly and consistently with the public": paragraph 68 of my judgment in Ex p Nadarajah [2005] EWCA Civ 1363) generally requires that where a public authority has given a plain assurance, it should be held to it. This is an objective standard of public decision-making on which the courts insist. I note with respect the observations of Peter Gibson LJ on the importance of reliance in Ex p Begbie at 1124B-D; but that was a case (or a putative case) of substantive legitimate expectation, where different considerations may arise.
31 Aside from these possible refinements, the paradigm case of procedural legitimate expectations is as I have said clear enough."
"The government's top priority in reforming the planning system is to promote sustainable economic growth and jobs. Government's clear expectation is that the answer to development and growth should wherever possible be 'yes', except where this would compromise the key sustainable development principles set out in national planning policy…
Local planning authorities should therefore press ahead without delay in preparing up-to-date development plans, and should use that opportunity to be proactive in driving and supporting the growth that this country needs. They should make every effort to identify and meet the housing, business and other development needs of their areas, and respond positively to wider opportunities for growth, taking full account of relevant economic signals such as land prices. Authorities should work together to ensure that needs and opportunities that extend beyond (or cannot be met within) their own boundaries are identified and accommodated in a sustainable way, such as housing market requirements that cover a number of areas, and the strategic infrastructure necessary to support growth.
When deciding whether to grant planning permission, local planning authorities should support enterprise and facilitate housing, economic and other forms of sustainable development. Where relevant - and consistent with their statutory obligations - they should therefore:
consider fully the importance of national planning policies aimed at fostering economic growth and employment, given the need to ensure a return to robust growth after the recent recession
take into account the need to maintain a flexible and responsive supply of land for key sectors, including housing
consider the range of likely economic, environmental and social benefits of proposals; including long term or indirect benefits such as increased consumer choice, more viable communities and more robust local economies (which may, where relevant, include matters such as job creation and business productivity)
be sensitive to the fact that local economies are subject to change and so take a positive approach to development where new economic data suggest that prior assessments of needs are no longer up-to-date
ensure that they do not impose unnecessary burdens on development."
Conclusions