18 March 2016
A Court of Appeal judgement in the case of Richborough Estates v Cheshire East Council (CEC) handed down yesterday has major implications for housebuilders and local authorities. It particularly affects local planning policies such as Green Belt and Green Gap policies which restrict the location of new housing.
The judgement largely focusses on the meaning and interpretation of paragraph 49 of the National Planning Policy Framework (NPPF).
The NPPF and Paragraph 49
The paragraph states: ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. 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.’
The Court of Appeal judgment is a victory for Richborough Estates in a long-running battle to build homes in Cheshire. The developers applied to Cheshire East Borough Council in 2013 for outline planning permission for 170 homes on a site in Willaston located in the designated Green Gap around Crewe. The council, which failed to determine the application in the prescribed period, was minded to refuse the application for several reasons, including the significant erosion of the Green Gap.
At the subsequent appeal inquiry, Richborough argued that, as Cheshire East could not demonstrate a five-year supply of housing, the policy which designates that Green Gap was out-of-date, according to paragraph 49 of the NPPF. The Inspector agreed with Richborough and allowed the appeal, granting permission for up to 146 homes.
Cheshire East chose to challenge the decision in the High Court where Mrs Justice Lang, quashed the Inspector’s decision. She accepted the council’s 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 Crewe and the neighbouring settlements.
The Court of Appeal Judgement
Richborough Estates then challenged the decision in the Court of Appeal. The judgement finds that the words ‘relevant policies for the supply of housing’ in paragraph 49 should have a wider interpretation. They should include not just policies in the development plan that provide positively for the delivery of new housing but also plan policies which restrict the locations for new housing development. These include policies for the Green Belt, Green Gap and other policies for the general protection of the countryside and the local environment.
The judgement said: “This 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.”
The judgment is also clear that it is for the decision-maker to determine how much weight should then be applied to out-of-date policies.
In allowing the appeal and granting planning permission for the development, the Court found that the Inspector proceeded on a correct understanding of the policy in paragraph 49 of the NPPF and a correct understanding of the relevant development plan policies. He exercised his own judgment when resolving which of those policies were within the scope of paragraph 49, and how much weight he should give them when applying the statutory presumption in favour of the development plan in section 38(6) of the 2004 Act and the policy "presumption in favour of sustainable development" in the NPPF. He made no error of law.
What it means for future decisions
The principal inference of the judgement is that Paragraph 49 should be interpreted widely and that it applies to all policies which restrict where housing development can go, including Green Belt.
The Judgement is clear that out-of-date polices for the supply of housing are not to be considered irrelevant and the weight to be attributed to them is for the decision-maker to decide. Paragraph 47 of the judgment states that the weight ‘will vary according to the circumstances, including, for example the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of the restrictive policy’.
The impact of this is likely to be two-fold. The level of housing supply and the actions of the council in attempting to meet a five year supply will form a consideration. But the intention of the specific policy designation and the characteristics of the site in relation to its designation will also have implications.
The judgement is significant in resolving the meaning of Paragraph 49 of the NPPF to support a core principle of the Framework which is to ‘boost significantly the supply of housing’ to proactively drive and support sustainable economic development to deliver the homes that the country badly needs.
Read the full judgement (opens in new window)
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