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Judicial Ping Pong

The Royal Courts of Justice

The Royal Courts of Justice

When the government introduced the National Planning Policy Framework (NPPF) as a means to a simplified planning system I bet they weren’t aware of where its simple directives could lead.

In a recent ‘landmark’ Court of Appeal ruling that could have wide ranging impact on this part of the country a developer, Richborough Estates, has won a legal battle with Cheshire East Council over plans to build almost 150 homes in a ‘green gap’ at Willaston.

At the original planning appeal the planning inspector had 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 of the NPPF but at an appeal to the High Court the judge found that the planning inspector had been wrong to regard the green gap housing policy as one that was out of date.

However, in this latest ruling the Court of Appeal disagreed with the High Court judge and ruled that: ‘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.’

This decision will have national significance, with a direct impact on the decision making process of councils such as Wealden District Council and Mid Sussex District Council which currently do not have a five year supply of deliverable housing sites.

Whilst the Court of Appeal refused permission for Cheshire East Council to appeal to the Supreme Court the council has just made a direct approach to the Supreme Court for the right to appeal. So this game of judicial ‘ping pong’ (council decision / inspector’s decision / High Court decision / Court of Appeal decision) might yet go into a final set at the Supreme Court.

The Court of Appeal decision will be of great interest to all those seeking to deliver housing in locations which were previously thought to be constrained by ‘plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed’. All the usual caveats apply. If this decision is of interest, read the full decision and take professional advice.

Iain Miller