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Paragraph 49 saga - a shot across the bow of the plan-led system?

05 June 2017 Author: Harry Burchill

The widely reported Supreme Court’s ruling on the application of paragraph 49 of the NPPF, the first time the NPPF has been debated in the UK’s highest court of appeal, has multiple implications. The Court ruled that:

  • Under paragraph 49 of the NPPF, policies for the supply of housing mean only those positively affecting the supply of housing rather than those that might restrict it, e.g. strategic gap, heritage policies (the wider view).

"Policies for the supply for housing" clarified

The first and most obvious significance is the interpretation of “policies for the supply for housing”. The judgment made clear that paragraph 49 is simply a trigger mechanism for the engagement of the final bullet point of paragraph 14.  As such, only a narrower set of policies should at the outset be considered out of date if a local planning authority (LPA) does not have a list of allocated sites in its adopted plan to demonstrate it has a five-year housing supply.

For applicants and developers, the response is mixed, but all seem happy that an element of uncertainty that has plagued the system since the NPPF was adopted has been reduced. For developers there is now certainty that what the judge described as counterpart polices (relating to limits of development) should not prevail in restricting development. For LPAs, there may now be a sense of relief as the opportunity to rely upon other (non-counterpart) restrictive local policies (see paragraph 14 of the judgement) has been endorsed by the Court.   

Importance of professional judgment confirmed

But the other important point here is that throughout all proceedings, it has been established that a policy being out of date does not mean it is irrelevant, and that it is down to the decision maker to determine how to apply planning policies. In other words, in arguing your case for or against development, any policy is still only as good as the evidence presented to support or discredit it.

For the RTPI, what the ruling says about the role of the decision maker in the application of planning policy is significant, as it confirms the importance of professional judgment in the planning system. It further strengthens the case that LPAs need to invest in their planning teams and to ensure that they have professionally chartered planners at the heart of them.

Implications for sustainable development 

The ruling also has significant implications for sustainable development in general. The paragraph 49 saga epitomises the debate over how much the national commitment to boosting housing numbers should override policies that control where homes should be built.

For many, the Supreme Court ruling applies a common-sense approach as to how paragraph 49 should be interpreted. It emphasised that if triggered, the tilting-in-favour impact of paragraph 14 is effectively kept in check by the proviso that decisions should be approved unless adverse impacts would demonstrably outweigh the benefits or specific policies in the NPPF indicate benefits should be restricted.

However, we may find ourselves watching this principle play out increasingly in the courts as the Housing White Paper proposes to define more clearly what such a policy that restricts development should be, and this may well open this issue to further litigation.

Five-year housing land supply - is it enough?

Finally, the saga shows how close two authorities came to having development approved where their local plan didn’t want it, all because they didn’t demonstrate a five-year housing land supply. It was arguably a shot across the bow of the plan-led system. Acknowledging that the details of the cases are complicated, it still begs the question: is the threat of unplanned and potentially unsustainable development a proportionate consequence of not planning ahead for housing for five years?

We are in the midst of an enormous housing crisis. Is five years a robust enough time-frame in which to plan effectively? Should there be more incentive to plan bigger and at scale?

Large scale projects are increasingly dependent on new structures of governance with special powers, such as development corporations. There is nothing wrong with them provided they have local buy-in, but as LPAs are at the heart of the planning system, should they not be more empowered to think big too? But thinking big and planning at the scale needed may require a period longer than five years in order to allow land to come forward.

In some cases, the pay-off for communities in the longer term may be a lot more beneficial than a system of incremental land release to cover a five-year period. This is not to say that a five-year housing land supply policy does not serve a purpose – it does focus minds on housing delivery. However, as the only mark of a plan’s soundness in housing terms, does it stifle planners’ ability to think bigger and longer term? 

Harry Burchill

Harry Burchill

Planning Policy Officer, RTPI - @HarryBurchill