Richborough Estates Judgment

Mon, 29 Apr 2013

Ian Dove QC, was successful in the Manchester High Court on behalf of Richborough Estates. The judgment, handed down on 29th April 2013, was  a claim made pursuant to s.288 (1) of the Town and Country Planning Act 1990. Cheshire East Council were seeking to have quashed and remitted a decision by the Secretary of State dated 6th December 2012 by which the Secretary of State allowed the appeal of Richborough Estates against their refusal of outline planning permission for the erection of up to 269 dwellings and associated works at a site south of Hind Heath Road, Sandbach, Cheshire. 
Originally the claim was advanced on two grounds however, ground 2 which concerned an allegation that the Secretary of State for Communities and Local Government erred by failing to explain the difference between the approach adopted in the Decision Letter and that which had been adopted in a decision relating to another scheme in the immediate area which had itself been quashed prior to the decision under challenge. The Claimant, Cheshire East Council, abandoned this ground when he opened the case. 
Ground one, which was referred to by Counsel as the “prematurity’ ground, was in essence related to the fact that Cheshire East Borough Council was in the course of preparing a new local plan for the borough. The process had been delayed because of  local government reorganization that had taken place as long ago as 2009. In the result however, the appeal to the Secretary of State for Local Communities and Government occured in circumstances where Cheshire East Borough Council had not published a new Local Plan and publication was many months away. 
Cheshire East Borough Council submitted that the process of plan making would be damaged if planning permission for the Schemes was granted and that planning permission should be refused on prematurity grounds because a new local plan was being prepared. The Secretary of State in the decision letter rejected this submission.
Cheshire Borough Council challenged the conclusion by maintaining that in arriving at it the Secretary of State:-
a)    failed to take into account a material consideration by concluding that the district housing requirement had not been determined through the emerging Core Strategy when the district housing requirement had been fixed by the Regional Strategy ;
b)    had misunderstood the policy on prematurity as set out in The Planning System – General Principles because in truth there is nothing within that policy that suggests that a prematurity argument depends the fixing of a housing requirement; and 
c)    failed to give adequate reasons for concluding that the housing requirement had not been fixed
Ian Dove QC for Richborough Estates (along with the Frist Defendant the Secretary of State) disagreed and submitted that this challenge was without substance because it involved reading one sentence out of context. It was clearly unsustainable when the decision letter was read as a whole and the decision was consistence with the relevant policy set out in The Planning System – General Principles. In truth it was submitted that there is no discernable error in dealing with the prematurity issue. 
It was submitted by Cheshire East Borough Council that the Secretary of State had failed to take into account the fact that the district housing requirement was fixed and contained in the Regional Strategy figures and therefore the Secretary of State had made an error of law however, this argument was not accepted by the Judge. 
The Judge said that it was not correct to suggest, that the policy contained in The Planning System – General Principles 2005 has been misunderstood or misapplied. It was equally incorrect to suggest that the Secretary of State has given inadequate reasons for the conclusion reached in the final in the decision letter. The conclusion was of itself entirely correct as was the conclusion expressed earlier in the decision letter concerning the effect of the regional strategy.
The Judge therefore dismissed the claim. 
Please click here to view the profile for Ian Dove QC

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