No5 Barristers on Both Sides in Supreme Court: Cheshire East v Richborough Estates

Next week, the Supreme Court will hear argument in a seminal case about the National Planning Policy Framework (NPPF). The case concerns the vexed issue of housing delivery.

·       The Supreme Court will decide which policies in a Local Plan should be considered out-of-date if the relevant local planning authority cannot demonstrate a five year supply of housing land (Policy NPPF/49), which is the minimum requirement (Policy NPPF/47).

·       The Court will consider the breadth of the key phrase “policies for the supply of housing”

·       The case also concerns the Presumption in Favour of Sustainable Development which is the centrepiece of the Government’s National Planning Policy (Policy NPPF/14).

The £19billion housebuilding and development industry awaits the outcome of the case with great interest, as it affects investment decisions across the whole of England.

Four barristers from No5 Chambers are involved in the case, on both sides of the argument: Martin Kingston QC, Hugh Richards, Christopher Young and James Corbet-Burcher. The written Case for each side has been submitted to the Court and can be found here:

·       Cheshire East Case 

·       Richborough Estates Case

The Statement of Facts and Issues which sets out the basic facts in each case and the agreed issues for the Supreme Court to determined can be found here:

·       Statement of Facts and Issues

As with all Supreme Court cases, the hearing will be televised live.  It will begin at 10.30am on Wednesday 22 February and continue until the afternoon of Thursday 23 February.

 ·      Supreme Court Website 

·       Supreme Court: Court number 1 – Live

The Story So Far

(1) The Planning Appeal 

Back in 2014, the case began as a standard planning appeal. It concerned 170 houses on the edge of Willaston, near Crewe in Cheshire. It was heard by way of a public inquiry conducted by Inspector Alan Boyland in June 2014.  Richborough Estates were represented by Christopher Young. Inspector Boyland allowed the appeal, in a decision dated 1 August 2014. The Inspector found the Council did not have a five year supply of housing land; as a consequence, the Council’s settlement boundary and Green Gap policies should be judged as not “up-to-date”, and given less weight. For the Planning Appeal decision please click here.

(2) High Court (Lang J) 

Cheshire East Borough Council challenged the decision in the High Court. It was defended by the Secretary of State, with Richborough Estates supporting. But the Council were successful in their appal and Inspector Boyland’s decision was quashed. In a Judgment handed down on 25 February 2015, Mrs Justice Lang concluded that “policies for the supply of housing” should not encompass a Green Gap policy (Policy NE.4) which sought to separate the village of Willaston from the town of Crewe. For the Judgement of The High Court please click here.

(3) Court of Appeal (Jackson, Vos and Lindblom LLJ) 

On the advice of Christopher Young, Richborough Estates appealed to the Court of Appeal on 17 March 2015. The Grounds of Appeals argued that the High Court’s interpretation of the phrase “policies for the supply of housing” was too narrow and the decision was internally inconsistent. Lord Justice Sullivan gave permission to appeal on 1 May 2015. A week later, he also granted permission for an appeal in a similar case: Suffolk Coastal v Secretary of State and Hopkins Homes, concerning 26 houses in Yoxford, near Southwold.  The Secretary of State supported the position of Richborough Estates and Hopkins Homes.

The Court of Appeal heard argument on 14/15 January 2016. On 17 March 2016 Lord Justice Lindblom handed down the Judgment of the Court. It was decided that “policies for the supply of housing” should be interpreted widely: i.e. such policies are not just those which plan positively for the supply of housing (such as allocation policies). But also those policies which seek to constraint it. Christopher Young was assisted in Court by James Corbet Burcher. For the Judgement of the Court of Appeal please click here.

(4) Supreme Court

Following the Judgment of the Court of Appeal, Cheshire East Council turned to No 5 Chambers for the first time in the case and sought advice from Martin Kingston QC.  Following that advice, grounds of appeal were drafted by Hugh Richards, seeking permission to appeal to the Supreme Court. Suffolk Coastal District Council rely on the same grounds.

Through its own barristers, Jonathan Clay and Dr Ashley Bowles, it is pursuing two separate points also rejected by the Court of Appeal: the correct physical limits of the settlement boundary of Yoxford; and the need to identify the significance of an undesignated heritage asset.

The Secretary of State supports the Judgment of the Court of Appeal.

Permission to appeal to the Supreme Court was granted on 11 July 2016. The Order was made by an Appeals Panel comprised of Lord Neuberger (President of the Court), Lord Carnwath and Lord Hodge. This is the highest court in the United Kingdom, three judicial levels above that of the planning appeal decision itself.  The matters the Supreme Court determines are points of law of general public importance.

The case will be determined by these three judges, together with Lord Clarke and Lord Gill. Those with a particular background in the law of town and country are Lord Carnwath and Lord Gill. The latter was the former Lord President of Scotland and is the editor of Scottish Planning Encyclopedia.

The Timetable

The case, which is listed for two days, will be heard on 22 and 23 February.

·       Martin Kingston QC, assisted by Hugh Richards, will present the case for both local planning authorities on the Paragraph 49 point on the morning of Tuesday 22nd. They are instructed by Trevor Griffiths of Sharps Pritchard.

·       Christopher Young, assisted by James Corbet Burcher, will present the case for Richborough Estates on the morning of Wednesday 23rd. They are instructed by Simon Ricketts of Town Legal.

·       Jonathan Clay, assisted by Ashley Bowles will present their separate points for Suffolk Coastal District Council on Tuesday afternoon. He is also instructed by Trevor Griffiths

·       The case for Hopkins Homes will be presented Christopher Lockhart Mummery QC, assisted by Zack Simons on Tuesday afternoon. They are instructed by Trevor Ivory of DLA Piper.

·       The case for Secretary of State will be presented last by Hereward Phillpott QC, assisted by Richard Honey on Wednesday afternoon. They are instructed by the Government Legal Department. 

·       The local authorities will have a final right of reply on Wednesday afternoon.