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The Implications of the Supreme Court Ruling in the Hopkins Homes and Richborough Estates Cases

Karen Jones

Partner Karen Jones, in our Planning and Environmental Law team, reviews the interpretation of Government Policy and the wider implications of the Supreme Court ruling in the Hopkins Homes and Richborough Estates cases.

Minerals and Waste Plans are part of the Development Plan regime and seek to guide mineral and waste development to the right locations. When considering proposals for waste development, waste plan policies and their explanatory texts will be taken into account to guide decision making. Regard should be given to the plan with appropriate weight for any waste plan requirements. 

Uncertainty in the strength of development plan policies adversely affects the wider concerns of waste planning. Competition for appropriate sites is fierce and land scarce. The Supreme Court has  recently clarified principles of the relationship between core planning principles contained in the National Planning Policy Framework (“NPPF”) and development plan policies in the case of Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council [2017] UKSC 37. 

Lord Carnwath expressed the case to be an opportunity for the Supreme Court to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan. His comments are no less relevant because these appeals were for housing development. 

The supremacy of Section 38(6) of the Planning and Compulsory Purchase Act 2004 has been emphasised again and the importance of legislation over policy firmly stated. Although the case dealt with questions of objectively assessed needs with respect to housing supply numbers, such needs considerations may be as relevant in dealing with the need for waste sites. It is clear Paragraph 14 of the NPPF has wider implications. 

In Lord Carnwarth’s judgement Paragraph 14 cannot and is not intended to detract from the priority given by statute to the development plan. He noted that although recourse to the Courts may be needed to resolve distinct issues of law or interpretation, in any proceedings it is necessary to distinguish clearly between issues of interpretation of policy appropriate for judicial analysis and issues of judgement in the application of policy, which would not be an appropriate consideration for the Court. The judgment specifically notes that Paragraph 14 of the NPPF is not concerned solely with housing policy and the Paragraph applies to other forms of development. 

Whether policies for other forms of development become “out of date” and the consequence of that, including the effect on other policies is a matter of planning judgement. The pressure for land may mean in turn that competing policies will be given less weight in accordance with what the Court called the “tilted balance”.  What is clear is that restrictive policies in the development plan, are relevant, but their weight will need to be judged against the need for development subject where applicable to the application of the “tilted balance”. 

The judgment has wider significance than its decision on the point in question. The findings in respect of Paragraph 14 can only help in the wider waste planning context. The presumption in favour of sustainable development means that a decision maker should be disposed to grant an application unless the presumption can be displaced. The grounds for displacing the presumption involve planning judgements after assessment against the policies in the framework taken as a whole or where specific policies within the framework itself indicate that development should be restricted. 

It remains clear from this case that specific policies in the development plan restricting development can rebut the presumption in favour of sustainable development which remains the “golden thread” that runs through the framework in respect of both drafting plans and making of decisions. 

For more information, please contact Karen Jones or a member of our Planning and Environmental Law team.

This blog article was first published in the Waste Planning Magazine.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.