Developer wins 'landmark' case over Cheshire green gap policy

A developer has won a long-running legal battle over its plans to build almost 150 homes in the Cheshire countryside in a judicial ruling that could have implications for local planning policies which protect land from development, including the green belt.

London's Royal Courts of Justice
London's Royal Courts of Justice

Cheshire East Borough Council yesterday lost a legal battle at London’s Court of Appeal where it had challenged a planning inspector's approval for the new homes in a green gap at Willaston.

Three judges, Lords Justices Lindblom, Jackson and Voss, yesterday handed down their ruling in the case which said that the inspector’s decision was right and that he had not made an error of law when he approved the project.

They also overturned a High Court decision last year by another judge, Mrs Justice Lang, which had quashed the inspector’s decision.

The inspector ruled that consent should be granted, saying that the council had not demonstrated a five-year supply of deliverable housing sites.

Paragraph 49 of the NPPF says that "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."

Since the council was unable to demonstrate a five-year housing land supply, the inspector decided that the council’s green gap policy could not be considered up to date and should be disapplied, in accordance with paragraph 49.

But the High Court judge found that the planning inspector had been wrong to regard the green gap housing policy as one that was out of date.

However, the Court of Appeal disagreed and in its ruling Lord Justice Lindblom said the inspector had "made no error of law."

In a statement, Richborough Estates said the ruling landmark "has far-reaching implications for the development industry and planning community concerning the delivery of housing across the UK".

It said that a "key conclusion from the Court of Appeal is that Paragraph 49 should be interpreted widely ... and it applies to all policies which are restrictive of where development can go".

"So if an LPA cannot demonstrate a five year supply of housing its settlement boundary policies and countryside policy cannot be judged as up to date."

It added that "one additional and very significant element of the Richborough case specifically is that Cheshire East Council argued that if its green gap policy was to be judged as out of date, why would the same conclusion not apply to the highly restrictive green belt?"

The Court of Appeal ruling said: "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 recognises 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."

Paul Campbell, director and founder at Richborough Estates said: "This case is of national significance, with implications of the verdict having a direct effect on housing delivery across the country.

"We were arguing for decision makers to be given the ability to determine a planning judgment on what constitutes a policy for the supply of housing as it affects that specific area. We were never seeking for green gap policies to be dis-applied in their entirety, but more that the weight is tempered when a 5 year supply of housing cannot be demonstrated."

Cheshire East Borough Council v Secretary of State for Communities and Local Government & Anr. Case Number: C1/2015/0894 


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