Cheshire East fails in latest High Court battle to overturn homes approved on appeal

Cheshire East Council has failed in its High Court bid to block plans for 29 new homes on greenfield land after a judge backed an inspector's finding that the authority did not have a five-year housing land supply when the appeal was allowed last year.

Cheshire East: council fails in latest High Court battle to overturn homes approved on appeal
Cheshire East: council fails in latest High Court battle to overturn homes approved on appeal

Graham and Angela Kirkham applied to build the new homes on land off Rope Lane, in the village of Shavington, but the council refused consent last year.

After the couple appealed, that decision was reversed by a central government planning inspector who granted the couple planning permission.

Under the National Planning Policy Framework (NPPF), councils are required to have in place a deliverable five-year supply of housing land. If they don't, planning inspectors apply the NPPF's "tilted balance", or presumption in favour of sustainable development.

The inspector applied the presumption after describing Cheshire's East's housing land supply as "marginal".

He accepted that the applicants' proposals were contrary to local planning policies and the new homes would effect the "undeveloped character of the strategic green gap between Shavington and Crewe".

However, he also said the loss of high quality farmland would be "modest" and harm to the local landscape would be "limited".

He found that the benefits of the scheme outweiged the disdvantages and, after applying the tilted balance, he granted planning permission.

At London's High Court, the council argued it was taking a "robust" approach to providing a five-year housing land supply.

With a number of new sites due for development, it said it was on target to meet the five-year benchmark.

The authority claimed the inspector had been wrong to take a "precautionary approach" and had failed to give adequate reasons for his decision.

In dismissing the council's challenge, however, Judge Justine Thornton QC said she could detect no flaws in the inspector's decision.

He had not misinterpreted the NPPF in deciding that the scheme would be "sustainable", she found.

He was also entitled to apply the tilted balance after concluding that Cheshire East did not, at the time, have a five-year supply of deliverable housing land.

The council's detailed criticism of the inspector's decision "amounts to excessive legalism" and was "misconceived", the judge said.

In April, a planning inspector found that the council had a five-year housing land supply, after backing the authority's refusal of plans for 41 homes on open countryside.

Ainsley Arnold, Cheshire East Council's cabinet member for housing, planning and regeneration, said: "Naturally, this decision is very disappointing but the council considered it was necessary to make this challenge in the High Court, given the importance of clarifying the law around land supply assessments and in the interests of protecting the local community from unplanned development as the appeal allowed development within a sensitive area of green gap between Shavington and Crewe.

"However, it should be noted that this decision does not question the council’s current housing land supply policy, which has been acknowledged as up to date, and in excess of five years, by virtue of a subsequent planning appeal in April 2018 (Gladman Developments v CEC)*.

"This decision remains unchallenged and is the most recent comprehensive assessment of the council’s housing supply."

April's "clear and definitive" appeal decision showed that the councils has a housing land supply of 5.25 years, he added.

In June, Cheshire East Council also failed in the High Court to block 10 homes near the village of Holmes Chapel after a judge ruled that an inspector's reasoning in allowing the homes on appeal was 'adequate and intelligible'.

Cheshire East Council v Secretary of State for Housing, Communities and Local Government. Case Number: CO/1032/2018


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