NPPF para 49 – meaning of "relevant policies for the supply of housing"
 EWCA Civ 168
After many conflicting High Court judgments on the issue, the Court of Appeal ruled on the correct meaning of “relevant policies for the supply of housing” in NPPF para 49.
These were conjoined appeals against decisions relating to planning permission for residential development. In both cases the inspector had had to establish whether particular policies of the development plan were not to be considered ‘up to date’ and, if so, what the consequences would be.
(1) What is the meaning of “relevant policies for the supply of housing” in para 49? (2) How is the policy in para 49 to be applied?
Decision on appeal
First appeal dismissed, second appeal allowed. The court ruled that:
(1) "Relevant policies for the supply of housing" meant policies relevant to the planning application and "affecting" the supply of housing i.e. it should not be interpreted narrowly to only policies which provided positively for the delivery of new housing.
Instead It had a wider interpretation extending to policies whose effect was to influence the supply of housing land by restricting the locations for new housing e.g. policies for the Green Belt, general protection of the countryside, AONB or National Parks, for the conservation of wildlife or heritage etc.
(2) In relation to housing development applications, the NPPF presented the decision-maker with a simple sequence of steps.
The first step, under para.49, was to consider whether "relevant policies of the supply of housing" were out-of-date because the LPA could not demonstrate a five-year supply. Provided he acted on the correct understanding of para.49 and of the development plan policy in question, it was for the decision-maker to judge whether the plan policy was a relevant policy for the supply of housing.
If he found that the relevant policies were out-of-date, then he applied the presumption in favour of sustainable development in accordance with para.14. But paras 14 and 49 did not make "out-of-date" policies for the supply of housing irrelevant nor did they prescribe how much weight should be given to such policies in the decision.
This very important decision will provide welcome certainty after some conflicting High Court decisions. The court came to its conclusion by reading para 49 objectively and in its full context: the government’s aim of boosting the supply of houses.
Whilst developers will be heartened by the court’s wide interpretation pursuant to this aim, all parties should be aware that in its application para.49 is very much one of planning judgment. The decision maker decides which are relevant policies and, if they are out of date, how much weight they should be given. The weight to be given (and no doubt the amenability of the decision to a finding of unreasonableness) will be affected by e.g. the extent to which relevant policies fall short of providing for the five-year supply of housing land and the action being taken by the LPA to address it.
Indeed there will be cases in which restrictive policies are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under para.49. Accurate predictions on the planning merits by developers and planners therefore will remain very difficult.