The Supreme Court has dismissed the joint appeal by Suffolk Coastal District Council and Cheshire East Borough Council in the case of Suffolk Coastal DC v Hopkins Homes, for more information see here. DLA Piper acted for Hopkins Homes.

The case addressed the question of which policies are caught by paragraph 49 of the National Planning Policy Framework published in 2012. Councils have argued for a narrow interpretation of the phrase "relevant policies for the supply of housing." In contrast, housing developers have argued for a wider interpretation, that catches any policy that affects the supply of housing, and this was the position of the Court of Appeal.

However, in dismissing the joint appeal, the Supreme Court judges disagreed with the Court of Appeal and adopted the narrow interpretation. Most significantly, they ruled that the categorisation of policies was, as Lord Carnwath put it, "inappropriate and unnecessary." He criticised the legalistic approach of deciding whether a policy is a housing supply policy or not.

DLA Piper UK Planning Head Trevor Ivory, who led the team acting for Hopkins Homes in the case, commented:

"The judgement renders paragraph 49 irrelevant. As from today, the critical question is whether a planning authority can demonstrate a five-year land supply. If not, the second limb of paragraph 14 is triggered and the decision-maker will need to have regard to the extent to which particular policies of the development plan are the reason for the under-performance when deciding what weight to give to those policies in the application of the titled balance - regardless of whether they are housing supply policies or not.

"This judgement puts a lot of power in the hands of the decision-maker, who will have a wide discretion on questions such as whether a policy is part of the cause of an under delivery of housing. Even if the decision-maker concludes that a policy is part of the problem, they will still also have a wide discretion as to the weight to attach to the issue. Planning by appeal therefore looks set to continue, with developers unhappy about local planning authority refusals looking for a very different weighting from the Secretary of State and his planning inspectors."