Cheshire East is seeking to challenge a Court of Appeal ruling that found an inspector ‘made no error of law’ when allowing up to 170 homes on a site in Willaston that falls within the green gap.
CEC is seeking leave to appeal to the Supreme Court after the Court of Appeal judgement which could see developers “riding roughshod” over councils’ local plan policies.
The Court of Appeal overturned a High Court judgement in favour of the Council and upheld a High Court judgement against Suffolk Coastal District Council regarding the weight, scope and force given to council planning policies.
The issue concerns Paragraph 49 of England’s National Planning Policy Framework which says housing supply policies should be considered out-of-date where councils cannot demonstrate “a five-year supply of deliverable housing sites”.
Cheshire East challenged a planning inspector’s recommendation to allow Richborough Estates to build 146 houses at Moorfields in Willaston. Suffolk Coastal challenged High Court approval of Hopkins Homes‘ challenge to both the Council and an inspector’s rejection of 26 homes at Old High Road in Yoxford.
“We have thought about this long and hard and it is not something we do lightly,” said Cheshire East cabinet member for housing and planning Ainsley Arnold.
“However, this court decision is too important to be allowed to go unchallenged. It is clear to us it would have deeply detrimental implications for councils across the country and their powers to protect local communities from unplanned and unsustainable development.”
He said the Council aims to maintain the significance of local plans in determining applications even when a council cannot show it has the “five-year supply” developers demand.
Three Court of Appeal judges concluded the High Court had misinterpreted Paragraph 49.
“The policy in Paragraph 49 does not disapply, or “bypass”, an ‘out-of-date’ policy in a statutory development plan,” says the judgement.
“The effect of a relevant policy being found to be ‘out-of-date’ or not ‘up-to-date’ under Paragraph 49 is that the presumption in favour of sustainable development is to be applied as Paragraph 14 of the NPPF provides. As we have said… this does not mean that the policy in question is to be disregarded. It must still be given the weight it is due in all the circumstances of the case.”
They concluded there was nothing wrong with an inspector concluding a policy was out-of-date but still giving it appropriate weight in planning balance.
But he was still entitled to decide how much weight to give when applying the statutory “presumption in favour of sustainable development”.