Cheshire East Council is seeking a landmark ‘leave to appeal’, in order to attempt to overturn a ruling by the Court of Appeal in the Supreme Court, the latest stage in a three-year battle with Richborough Estates over a 146-home scheme near Moorfields, Willaston.
According to Cheshire East, a decision made by the Court of Appeal last year in relation to the case “undermines the scope and force of council planning policies to shape development”, and risks “developers riding roughshod over councils’ development policies”.
In December 2015 following an appeal by Richborough, the Court of Appeal overturned a High Court decision from February 2015, in which judge Justice Lang backed Cheshire East Council’s refusal of the Moorfields development and said that there had been an “error of law” when the development had been approved at appeal in August 2014.
The council’s strategic planning board first rejected the application for the 16-acre site in April 2014, saying that the scheme was unsustainable as it is located within open countryside, would result in the loss of agricultural land, and would cause a “significant erosion” of the green gap.
A basis of the court’s backing of Richborough was that Cheshire East Council couldn’t prove a five-year land supply at the time of the application, showing that policies around settlement and green gap were out of date. However, in its leave to appeal, Cheshire East wishes to maintain the significance of local plans and neighbourhood plans in determining applications for development even if it cannot show it has the required five-years’ deliverable housing land supply identified.
Cheshire East Council believes that the ruling by the Court of Appeal has national implications for planning policy. Its Supreme Court legal challenge is a joint action with Suffolk Council, which was also affected by the same High Court ruling regarding the weight, scope and force attached to council planning policies.
If the two authorities are granted leave to appeal, against the court’s interpretation of paragraph 49 of the government’s National Planning Policy Framework, the case will likely be heard by the Supreme Court in London later this summer.
Cllr 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.
“We are a council that puts its residents first and believe this action is necessary to protect local people, their communities and our beautiful Cheshire East countryside. Otherwise, developers will be able to ride roughshod over locally-decided development policies.”
Barton Willmore is advising Richborough Estates on planning, while No5 Chambers is advising on legal matters.