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23 March 2016

Days of 49: NPPF paragraph 49 clarified

I am sure that Bob Dylan, prescient as he is, did not have paragraph 49 of the NPPF in mind when he penned "Days of 49". I am also pretty sure that, in the Court of Appeal, on 17 March, Lord Justice Linblom did not have that tune in his mind when he delivered his erudite unambiguous judgment on how that particular nugget of the NPPF is to be interpreted.

Paragraph 49 states that where the local planning authority cannot demonstrate a 5 year supply of deliverable housing sites, relevant policies for the supply of housing should not be considered up to date. That then applies the presumption in favour of granting planning for sustainable development in paragraph 14. The court were asked to consider how, in these circumstances, a local planning authority is to balance the local requirements of their development plan against the national requirements set out in the NPPF.

The court has succinctly and clearly set out the position. For those of us involved in promoting housing sites through the planning process the judgment provides much needed clarity to an area that is often unnecessarily contentious.

The judgment can be summarised by considering the decision making process in the following steps:

  1. Does local policy, properly interpreted, dictate that permission should be granted?
  2. If no, then are the policies that are to be considered in determining the planning application, including those that may be against granting planning permission, out of date?
  3. Those policies are any that are properly to be considered in determining the planning application. It is not important if they are expressly concerned with the delivery of housing or are for instance concerned with protecting countryside, green belt, AONB, or are other restrictive policies.
  4. If there is not a demonstrable 5 year housing supply, ignoring any restrictions that may prevent that (preponderance of green belt land in the local planning authority's area for example), then those policies are out of date. They will still have some weight but the presumption in favour of granting planning permission will apply.
  5. That presumption must be applied alongside the other NPPF policies and the local policies. The local policies will have varying degrees of weight in the decision making process, depending on whether they are out of date or not and the extent of the housing supply shortfall - the greater the shortfall the lesser the weight - but they still have some weight, even if that is minimal.

So, if there is a housing shortfall, it matters not what the purpose of the local policy is. If the effect of that policy is to restrict housing development, it is a policy for the supply of housing, irrespective of what its primary concern is.

Reference to a "relevant policy" in paragraph 49 simply means a policy relevant to the application being considered, there is not any greater distinction necessary. In making a decision whether to grant or refuse planning permission, a planning authority must consider what weight to give those policies but must also bear in mind that because the NPPF is government policy, "it is likely to always merit significant weight".

This provides important and binding guidance on how planning applications in areas where there is a 5 year deficiency in housing supply must be determined. This may not be the gold rush of '49 that Bob Dylan sang about but it does provide strong support for the continued government push to bring forward housing development.

This article was written by Tim Johnson.

For more information please contact Claire Fallows on +44 (0)20 7427 1046 or