Christopher Young & James Corbet Burcher Successful in Court of Appeal

Thu, 17 Mar 2016

In A Case Of “Critical Importance To National Planning Throughout The Country”

Judgment was handed down this morning in the case of Richborough Estates Partnerships LLP v Cheshire East Borough Council and Secretary of State for Communities and Local Government in the eagerly awaited Judgment of the Court of Appeal on the full extent of a pivotal provision of the National Planning Policy Framework (NPPF). All local planning authorities in England are required to have a minimum five-year supply of housing land. The policy in Paragraph 49 of the NPPF requires all decision makers across the country who are determining planning applications and appeals to treat “[r]elevant policies for the supply of housing as not up to date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.” 

On no less than six occasions, the High Court has sought to grapple with what the phrase “relevant policies for the supply of housing” means, and often with contradictory conclusions. There was a clear need for clarity, and on advice from Christopher Young, Richborough brought an appeal against one of those High Court Judgments in a hearing which took place in January before Jackson, Vos and Lindblom LLJ. 

Richborough Estates has been seeking planning permission 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 upgrade to Green Belt.

A planning application was submitted in September 2013 and an appeal submitted in January 2014.  Richborough, through Christopher Young, 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 “[r]elevant policy for the supply of housing.”

The planning appeal was allowed by Inspector Alan Boyland in August 2014, who accepted the Green Gap policy was a relevant policy for the supply of housing. But the local planning authority, Cheshire East Council, sought to challenge the decision in the High Court on four 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.

Following advice from Christopher Young, Richborough challenged Mrs Justice Lang’s decision in the Court of Appeal.  Permission to appeal was given by Lord Justice Sullivan in May 2015 without the need for an oral hearing, 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 clearly decided by Ouseley J in South Northamptonshire v SCCLG and Barwood. Suffolk Coastal DC secured permission to appeal from Lord Justice Sullivan a week after Richborough.  Both cases were heard together and 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 housing development can go. So if an LPA cannot demonstrate a five year supply of housing land then its settlement boundary policies and countryside protection policies 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, has the same meaning as “out of date” in Paragraph 14 of the NPPF. So if there is no 5 year supply of housing land, environmental protection 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 about the quantum and distribution of housing as argued for by Cheshire East Council, and accepted by Mrs Justice Lang in both this case and in her Judgment William Davis v SSCLG and North West Leicestershire. The Court of Appeal rejected that narrow view. It came to its Judgment because, read in its proper context, including the national policy 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 they cannot themselves 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.”

This is a seminal statement on the extent of Paragraph 49 and defines the relationship between housing and environmental policies, with far reaching implications.  

Christopher Young appeared for Richborough Estates at the planning appeal, the High Court and the Court of Appeal, and was joined in the latter hearing by James Corbet Burcher.

Click here to view a copy of the judgment.

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