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Court of Appeal hands down judgment on
“issue of critical importance to the application of national policy throughout the country.” 

This morning, the Court of Appeal has handed down a landmark ruling that has far-reaching implications for the development industry and planning community concerning the delivery of housing across the UK. 

Richborough Estates has been arguing the case for the delivery of 146 homes on a 16 acre site north of Willaston, near Nantwich in Cheshire for three years. The Site is located in the controversial Green Gap, around Crewe, which the Council is presently seeking to up-grade to Green Belt.

A planning application was submitted in September 2013 and an appeal submitted in January 2014.  Richborough, through their barrister Christopher Young of No5 Chambers and planning consultant Mark Sitch of Barton Willmore, argued that because the Council could not demonstrate a five year supply of housing land, the Council’s Green Gap policy should be given reduced weight because it is a “relevant policy for the supply of housing”

The planning appeal was allowed by Inspector Alan Boyland in August 2014. But the local planning authority, Cheshire East Council, sought to challenge the decision in the High Court on 4 grounds. The High Court Judge, Mrs Justice Lang rejected three of those grounds, including the suggestion the Inspector was wrong to find the Council could not demonstrate a five year supply of housing land. 

But the High Court Judge accepted the argument that the Green Gap policy was not a relevant policy for the supply of housing because it was also concerned with preventing coalescence between Willaston and Crewe, and she quashed the planning permission in a Judgment dated February 2015. 

Since the challenge was made to the Inspector’s decision, the First Defendant in the High Court proceedings was the Secretary of State. Unfortunately, after the High Court Judgment was issued, the Secretary of State declined to appeal the Judgment of Mrs Justice Lang to the Court of Appeal.

But following advice from Christopher Young, we were persuaded to challenge Mrs Justice Lang’s decision in the Court of Appeal. The advice we received was that the decision was internally inconsistent in trying to both accept and reject elements of another High Court Judgment, that of Mr Justice Ouseley in South Northamptonshire v Sec of State for Communities and Local Government and Barwood. 

There are a number of contradictory Judgments from the High Court on the interpretation of Paragraph 49 issue and therefore Richborough saw the opportunity to obtain some clarity for the development industry if the Court of Appeal could be persuaded to consider the issue.  Gateley PLC acting as our solicitors in the case.

We secured permission to appeal from Lord Justice Sullivan without the need for an oral hearing in May 2015, with his Lordship observing that not only did Richborough’s appeal have a good prospect of success, but “the ambit of ‘relevant policies for the supply of housing’ in paragraph 49 of the NPPF is rightly described in the Appellant’s Skeleton as an issue that is of critical importance to the application of national policy throughout the country.” 

After hearing the case in January, the Court of Appeal issued Judgment this morning in Richborough’s case, together with a conjoined appeal by Suffolk Coastal District Council who argued paragraph 49 did not even apply to settlement boundary policies (a point already decided clearly in the South Northamptonshire case). The Suffolk case secured permission to appeal from Lord Justice Sullivan a week after Richborough.  As such, Lord Justice Lindblom handed down the lead Judgment in both cases together this morning. 

The key conclusion from the Court of Appeal is that Paragraph 49 should be interpreted widely, as Mr Justice Ouseley had decided in the South Northamptonshire case 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.

The Court of Appeal made clear that the phrase “should not be considered up-to-date” in Paragraph 49, should be seen in this context, as meaning the same as “out of date” in Paragraph 14 of the NPPF. So if there is no 5 year supply of housing land, environmental policies are to be seen as out of date. 

The Court of Appeal rejected the narrow interpretation of Paragraph 49 which suggested that it only applies to policies solely regarded with the quantum and distribution of housing as argued for by Cheshire East Council, and accepted by Mr Justice Lang in both this case and in her Judgment William Davis v SSCLG and North West Leicestershire. 

The Court of Appeal came to its Judgment because, read in its proper context, including the need to boost significantly the supply of housing, paragraph 49 is about the delivery of housing and ensuring local planning authorities are not able to use environmental policies to restrict housing when it cannot itself even demonstrate the minimum five year supply of housing. 

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?

In so doing, Cheshire East put that difficult question before the Court for its consideration. But Richborough argued that Paragraph 49 was equally applicable to national Green Belt policy as it is to every other policy which seeks to restrict where housing can be located. On that point the Court held:

“33. 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 recognizes 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.”

In the end, what Richborough has done is support an Inspector who supported us at appeal, and have done so to the highest level necessary, even when the Secretary of State initially failed to do so.

In the end, what Richborough has done is support an Inspector who supported us at appeal, and have done so to the highest level necessary, even when the Secretary of State initially failed to do so.

For more information on Richborough Estates, visit www.richboroughestates.co.uk

Full copies of the appeal decision and Judgements of the High Court and Court of Appeal can be found here.

More information on our partners and advisors who were instrumental in securing this Judgement can be found at the following:

Christopher Young, No.5 Chambers
Mark Sitch, Barton Willmore
Andrew Piatt, Gateley PLC
 

Copyright © 2016 Richborough Estates, All rights reserved.


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