Appeal against Court of Appeal planning decision!

The following item from the Property Services Newsletter may be of interest to anyone concerned about planning issues as it is an important decision locally and nationally by the Court of Appeal.

Our thanks to Martyn Measures for bringing it to our attention:

Recent Court of Appeal ruling described as of critical importance to national planning.

A recent ruling in the case between Richborough Estates Partnerships LLP, Cheshire East Borough Council and the Secretary of State for Communities and Local Government, has handed down a decision that has been considered to be of critical importance to national planning.

Current planning legislation requires all local authorities in England to provide a minimum five year supply of housing land and paragraph 49 of the National Planning Policy Framework states:
"Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."

The High Court has, on six previous occasions, attempted to clarify the meaning of the phrase 'relevant policies for the supply of housing', very often with differing conclusions. The need for clarity became apparent and with that Richborough Estates decided to appeal.

Richborough Estates originally submitted a planning application in 2013 for 146 houses to be built on a 16-acre site near Nantwich and an appeal was submitted in January 2014. They argued that because the council could not demonstrate a five year supply of housing land, the council's Green Gap policy should be given reduced weight because it is a relevant policy for the supply of housing. However the planning permission was quashed in February 2015.

In May 2015, Lord Justice Sullivan gave permission for Richborough Estates to challenge the decision at the Court of Appeal, explaining that they had a good chance of success.

The case was heard in January of this year and the key conclusion was that Paragraph 49 should be interpreted widely and applied to all policies that are restrictive of where housing development can go. The Court of Appeal clarified that the phrase 'should not be considered up-to-date' in paragraph 49 means the same as 'out of date' in paragraph 14.

In practice this means that if there is no 5 year supply of housing land, then environmental policies are to be considered as out of date.

Another key point that arose from the Richborough case was whether because Cheshire East Council's Green Gap Policy was judged as out of date, should the same conclusion apply to the Green Belt. The court held:
"Our interpretation of the policy does not confine the concept of "policies for the supply of housing" merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites.

"It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed -- including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it -- that policies of both kinds make the supply what it is." *

Cheshire East's response

As announced last week on AudlemOnline, Cheshire East is to now seek a Supreme Court ruling in a bid to protect local planning powers and prevent developers 'riding roughshod' over councils' development policies.

Cheshire East Council Cabinet is spearheading a landmark 'leave to appeal' to the highest court in the land to challenge the above Court of Appeal ruling which, they say, undermines the scope and force of council planning policies to shape development.

Their aim, says the Council, is to maintain the significance of Local Plans and Neighbourhood Plans in determining applications for development even where a Council cannot show it has the required five-years' deliverable housing land supply identified.

Councillor Ainsley Arnold, Cheshire East Cabinet member for housing and planning, said: "We have thought about this long and hard and it is not something we do lightly. However, this court decision is too important to be allowed to go unchallenged.

"It is clear to us it would have deeply detrimental implications for councils across the country and their powers to protect local communities from unplanned and unsustainable development.

*AudlemOnline adds: As with so much written for and by lawyers, you will have to read it several times to understand exactly what this means – and then realise that you don't know what it means – and then give thanks, assuming you are not a lawyer, that you don't have to read this sort of English every day of your working life.

At least such wording means that each decision made by one court can go to yet another court to clarify what it and previous appealed decisions actually do mean – or don't, depending upon your point of view – so providing gainful employment for all involved.

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