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Welcome judgement clarifying interpretation of Paragraph 49 of NPPF and assessment of non-designated heritage assets

The recent conjoined Court of Appeal judgement in the cases of Hopkins Homes Ltd vs Suffolk Coastal District Council and Richborough Estates vs Cheshire East Borough Council will be of interest to those arguing about five year land supply and the relevance of restrictive land designation policies, says Genevieve Collins, senior planner at Alder King.

Hopkins Homes had sought permission for 26 dwellings in historic parkland while Richborough Estates had made an application for 170 dwellings within a ‘Green Gap’.

In the absence of a five year housing supply, the inspector allowed the appeal in the case of Richborough Estates, stating the Green Gap policy in the context of paragraph 49 of the National Planning Policy Framework was a ‘relevant’ policy for the supply of housing and should be considered out of date. This conclusion was challenged in the Court of Appeal with a resulting judgement published yesterday, 17 March 2016.

The Court of Appeal took the view that a narrow interpretation of ‘relevant’ policies in paragraph 49 of the Framework is “plainly wrong” and should be read in a wider context, not solely focused on policies relating to housing.  Lindblom LJ considered that if a Local Planning Authority cannot demonstrate a five year housing supply, then environmental/countryside protection policies in local plans as well as local plan policies relating directly to housing, should be considered out of date because such environmental/countryside protection policies have the “effect to influence the supply of housing land by restricting locations where new housing may be developed”.

Such policies would include those protecting Green Belt/AONB/Green Gap and wildlife or heritage areas. However, Lindblom LJ qualified this by stating that whilst these policies may be out of date, they are still a material consideration with the weight to be applied to them being a matter for the decision maker. When considering the weight to be afforded to protection policies, regard should be had to the requirements of Paragraph 14 footnote 9, as well as other Framework provisions.

Furthermore, another useful finding of the Judgement confirms that in relation to paragraph 135 of the Framework (assessment of development on non-designated heritage assets), decision makers must demonstrate a “distinct” and “clearly reasoned assessment” of the effect the development would have on the significance of a heritage assetand “crucially” make a “balanced judgement”, having regard to the scale of any harm or loss and the significance of the heritage asset”.  This would indicate that should an LPA or an Inspector fail to do this, then the decision could be open to challenge.


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