Do green gaps and green spaces constrain housing supply? The Supreme Court says ‘no’.
A welcome Supreme Court ruling is the latest twist in an ongoing battle over the legal definition of key paragraphs of the National Planning Policy Framework (NPPF) affecting Local Plans’ control over where new housing is built.
Suffolk Coastal District Council and Cheshire East Borough Council jointly brought a case to the Supreme Court, challenging a Court of Appeal decision in March 2016. This was because both Councils had lost appeals and were unable to demonstrate a five-year housing land supply. But in Cheshire East, the appeal Inspector found that the countryside and green gap policies governed the supply of housing, and were therefore out of date in relation to paras 14 and 49 of the NPPF; whilst in Suffolk similar policies were not interpreted in the same way, and the settlement boundaries were therefore deemend up to date. The two Councils agreed that a consistent interpretation was needed, and therefore brought the legal case.
The Supreme Court’s finding is potentially important, because it has said that ‘relevant policies for the supply of housing’ are simply those policies that identify acceptable housing sites, and “in neither case is there any reason to treat the shortfall in the particular policies as rendering out of date other parts of the plan which serve a different purpose”.
What this means in practice is that if there isn’t a five-year land supply, then NPPF’s ‘presumption in favour of sustainable development’ is triggered, and an application must be judged on whether “adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the NPPF’s policies taken as a whole”. But this does not in itself render other Local Plan policies, such as settlement boundaries and green gaps, out of date in themselves, because it must be understood that those policies serve a wide range of purposes and are not primarily about limiting or enabling housing land supply.
This is good news, because we have consistently argued that settlement boundary, green gap and urban green space policies are not designed to constrain housing land supply, but to shape development and – crucially – keep land available for non-built uses that are essential to quality of life.
A further issue, which we will explore through our future work, is whether measurable ‘adverse impacts’ of a development proposal may include impacts on the integrity of the adopted or emerging Local Plan or Neighbourhood Plan. If there are planning policies seeking to achieve a certain pattern of development, including the location of development, the retention of open space, the settlement hierarchy etc, and a planning permission would undermine that pattern, then it may be argued to have an adverse impact on the Local Plan.