De-lawyering the NPPF? The Supreme Court decision in Hopkins Homes
This case (judgment handed down on 10 May) concludes a long line of cases about whether ‘relevant policies for the supply of housing’ in para 49 of the National Planning Policy Framework should be read widely or narrowly. “Widely” means any policy connected with housing supply – that could be almost anything: this was thought to be good news for developers who could argue the irrelevance of a wider range of policies and greater scope for other material considerations where the housing target has not been met. “Narrowly” meant the opposite.
The Supreme Court has gone with “narrowly”. But – more helpfully – it has also called time on the whole debate, instead focusing attention on NPPF paragraph 14. That is where the weight to be given to local plan policies is watered down when the paragraph 49 test has been met. The Court decided that these remain matters of planning judgment for those operating in the development control system – LPAs, planners, inspectors.
So, what changes as a result of all this? In a way it just reflects the statutory (not policy) basis of development control as set out in the 1990 Act. But I actually see the judgment as a positive one for developers (though perhaps not for lawyers!). It presses for a less legalistic argument about application of policy to development proposals – there should be a greater focus on the consequences of housing supply shortages and the weight to be attached to the policies which continue to constrain that supply. This involves the review and the weighing of all policies, not just those in the NPPF itself. But, as always, it does leave discretion squarely in the hands of the decision makers.