Four barristers from No5 Chambers defeat council challenge seeking to overturn permission for 1,000 homes

 

The Secretary of State had granted permission for the development of land on the outskirts of Bishop’s Cleeve in Gloucestershire - in accordance with proposals that include provision for up to 1,000 new dwellings, new local retail centres and a range of community facilities - in July 2012. 

 

Tewkesbury Borough Council, however, challenged the lawfulness of the Secretary of State’s decision, under section 288 of the Town and Country Planning Act 1990, on grounds including prematurity and a failure to consider material considerations. The Council’s particular material consideration was that the Localism Act had brought about a “sea change” to the process, giving greater priority to the considerations of local planning authorities than to a council determining the provision of housing in consultation with its local community, which was undemocratic. 

 

Mr Justice Males, however, affirmed the decision of the Secretary of State and the granting of planning permission, in his judgment of 20 February. He held that the Secretary of State was entitled to conclude that Tewkesbury Borough Council’s existing development plan policy was outdated and so should be given little weight, while the inability to demonstrate a five year housing supply was not just a material but the most important material consideration. This was particularly so as the Joint Core Strategy proposals were incapable of meeting housing demand over the next five years. 

 

The Court accepted that the Localism Act had resulted in significant changes to the planning system. Mr Justice Males, however, rejected that those changes had radically changed the planning decision process, other than make provision for the abolition of Regional Strategies and thus the potential for removal of one bureaucratic tier of the planning process. 

 

Tewkesbury Borough Council argued that certain government policy statements about the Localism Act hinted at wider sweeping objectives, but Mr Justice Males rejected this argument pointing out that the field of planning law required precision when it came to interpreting the impact of what could be considered as political statements on proposed changes to law or policy. 

 

Mr Justice Males concluded that development plans prepared by local planning authorities in accordance with national policy principles as set out in the National Planning Policy Framework, including the provision of a five year housing land supply, represent the starting point for consideration of planning applications. He stated that there was no question of local authorities being empowered to develop plans without regard to the national policies set out in the NPPF. 

 

The Learned Judge added that there was no suggestion that: “greater weight should be accorded to the views of local authorities who do not have such a development plan (or during the one year transitional period, a development plan produced in accordance with the PCPA 2004) over and above whatever weight would be appropriate pursuant to the long established prematurity principle. Nor do they cast any doubt on the fact that, pending the adoption of local development plans, individual planning applications will continue to be dealt with, where appropriate by the Secretary of State, applying existing principles”.

 

Mr Justice Males found no valid basis upon which it could be concluded that the Secretary of State's decision was unlawful as being contrary to his own policy, introduced as a result of or embodied in the Localism Act. 

 

In addition he concluded that the Secretary of State and the Inspector agreed that granting planning permission would not have prejudiced the emerging Joint Core Strategy (JCS) and this was not a case where permission was granted despite such prejudice.

 

Comparo Ltd was represented by Jeremy Cahill QC of No5 Chambers and Celina Colquhoun, instructed by Brabner Chaffe Stree LLP while Welbeck Strategic Land LLP was represented by Ian Dove QC and Satnam Choongh of No5 Chambers, who were instructed by Osborne Clarke. Kevin Leigh of No5 Chambers represented Tewkesbury Borough Council. 

 

Jeremy Cahill QC is head of the Planning and Environment Group at No5 Chambers. This set offers a national planning service and is home to “some of the finest barristers in the country”, according to Chambers UK 2011. 

 

Chambers UK explains that No5's domination of the Midlands’ circuit is founded upon “a specialist team that can act on any planning issue that comes its way” and that Jeremy Cahill QC has “a huge following thanks to his advocacy skills and brilliant understanding of the planning system”. 

 

Ian Dove QC is Deputy Head of No5 Chambers and sits part time as a Deputy High Court Judge. Ian was recently voted third in the guide to Planning Lawyers survey and has been described by Chambers UK as “an extremely client-focused, sharp and commercial barrister” and as “someone you can trust your life with”. Indeed, Chambers UK also said “no one gets to Silk before they are 40 unless they are good and he is outstanding”. 

 

Celina Colquhoun specialises in all aspects of Planning, Environmental and Compulsory Purchase Law; Highways, Local Government and Public and Administrative Law. She is “a great advocate, who is very persuasive, and very good with clients” according to Chambers and Partners 2013, while Legal 500 says “she is willing to go the extra mile”. 

 

Satnam Choongh regularly features in the “Leaders at the Bar” section of the Chambers UK Directory, which describes him as “very sharp”. He specialises exclusively in town and country planning, acting for developers, government agencies and local planning authorities. 

 

Kevin Leigh regularly appears at planning inquiries and hearings as well as in the Higher Courts dealing with planning and enforcement issues, acting for private clients, developers and authorities. He has a hands-on, straightforward and tactical approach to cases and is very highly regarded by clients.

 

Anyone wishing to know more about the Planning and Environment Group should visit www.no5.com/areas-of-expertise/planning--environment while anyone seeking more information about No5 Chambers should email info@no5.com or telephone 0845 210 5555.