Following a successful appeal at the start of the year against the refusal of outline consent for 29 homes in Shavington, Country and Coastal Developments, advised by Hourigan Connolly, has defended a High Court challenge to the decision.
Although its challenge was dismissed, Cheshire East Council said that the decision does not call into question the local authority’s current housing land supply.
At appeal in January, a Planning Inspector had agreed with the Manchester-based planner’s contention that the ‘green gap’ Rope Lane site at the village near Crewe equated to infilling of the settlement edge and represented sustainable development.
The ‘tilted balance’ policy, outlined in the National Planning Policy Framework paragraph 14, which can be engaged in areas where housing supply is disputed, was engaged here by the Inspector.
Although Cheshire East had adopted its Local Plan in summer 2017, an appeal decision by a Planning Inspector in November 2017 questioned the robustness of its five-year housing supply, although Cheshire East won that particular case, for 400 homes at White Moss near Alsager.
Following the January verdict, Cheshire East sought leave to challenge the legality of the Inspector’s decision, referring to the White Moss decision and a further case in Willaston – but the challenge was dismissed and the appeal upheld.
Daniel Connolly, executive director at Hourigan Connolly, was acting agent for the planning application and appeal and, working with Paul Tucker and Freddie Humphrey of Kings Chambers and Emily Williams of Addleshaw Goddard, built the case to defend the local authority’s challenge.
Connolly said: “The judgement comes after many months of hard work by the team to defend the council’s challenge. I am obviously delighted with the outcome and the judge has seen fit to hand down a clear and concise judgment in our favour.
“We can now get on with the delivery of 29 high quality family homes in a popular and desirable location, making a positive contribution to the local community, and delivering open market and affordable housing in a council area where there is an acute need for such development. We are really pleased to achieve this positive outcome for Country and Coastal.”
Cllr Ainsley Arnold, Cheshire East’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.
“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.
“The council challenged the inspector’s decision in the High Court on his legal interpretation of the national planning policy framework and the use of the ‘tilted balance’ fall-back position where housing land supply was thought to straddle the five year target.
“This case hinged on how the law should be applied where housing land supply was found to be marginal. That situation does not apply today as we have the benefit of a clear and definitive decision showing that a supply of 5.25 years is in place. The judgement has no bearing on the council’s current housing land supply position and it will not alter the way planning applications are presently determined in the borough.”
The case as described in the judgment handed down by Justine Thornton QC rested on whether or not the Inspector had misunderstood or misapplied paragraph 47 of the National Planning Policy Framework, in particular the necessity of a council demonstrating a five-year housing supply.
The Inspector looking at Shavington had used evidence arising from the White Moss and Willaston appeal verdicts, both of which were reached after public inquiry, and thus provided greater scope for analysing housing supply.
The Inspector looking at the Willaston case had analysed 32 sites where deliverability within five years was disputed and found a “realistic prospect” of between 1,181 and 1,421 dwellings included in the five-year supply not being delivered.
Reuben Taylor QC acted for Cheshire East and submitted the grounds for appeal as being that the Inspector had erred in law, on three points: that where ’tilted balance’ should be applied was misinterpreted; that the planning guidance requiring robust, up to date evidence on all sites within the housing supply had been misinterpreted – effectively, claiming that the Inspecotr had been too harsh in assessing deliverability – and that adequate reasons had not been given.
The judge, however, ruled that there had been no error of law in the Willaston inpsector’s application of the policy framework, going on to say that both Inspectors were justified in ruling that caution should be exercised in judging the inexact science of five-year supply.
In what could be read as a withering dismissal of the claim that NPPF had been misunderstood or misapplied, the judge noted in summing up that “it is reasonable to assume that national planning policy is familiar to inspectors and that I should approach arguments that inspectors have misapplied some fundamental components of planning policy with great hesitation”.
The judge described the “attack” on the Willaston Inspector’s reasoning as amounting to “excessive legalism” surmising that the respective inspectors had given adequate reasons for their decisions.
Cheshire East said that it will soon publish its latest position on supply, put together following publication in July of NPPF revisions on housing supply assessments. Cllr Arnold said: “In the next few days, the council will publish its updated five-year housing supply position, which brings all of the figures up to a 2018 base date and which takes full account of the revised national guidance.”