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Richborough Estates v Cheshire East Council (CEC)

Wednesday 17 May 2017

In a landmark ruling, the Court of Appeal has handed down judgment on the case of Richborough Estates v Cheshire East Council (CEC), finding in favour of the developers.

Richborough Estates have won their case in the Supreme Court against Cheshire East Council, meaning they can now implement their planning permission for 146 houses in the Green Gap between Willaston and Crewe. The Council initially opposed the scheme, citing that the site lay outside the settlement boundary for Willaston, and within the protected Green Gap protecting land between Willaston and Crewe.

Whilst Richborough Estates were successful in defending their planning permission on 'Green Gap' land, the Supreme Court held that the Court of Appeal’s prior interpretation of what are “relevant policies for the supply of housing” in paragraph 49 of the NPPF was wrong and that those words legally bore the narrow meaning as the two Councils had contended.

This decision means that the judgement in the previous case of Suffolk Coastal v Hopkins Homes Limited will have to be re-determined. In this case, the High Court refused to overturn government approval for 180 new homes near Woodbridge.

However, in the Richborough appeal, the inspector’s error in the paragraph 49 issue had not materially affected the inspector’s consideration of the NPPF paragraph 14 ‘tilted balance’ so there was no reason to question the validity of the permission. The Court said the inspector was clearly entitled to reduce the weight to be given to restrictive policies derived from settlement boundaries that in turn reflect out of date housing requirements.

The dismissal of the Hopkins Homes appeal was quashed for a reason unrelated to the paragraph 49 issue but which had distorted his approach to the paragraph 14 balance.

The Supreme Court has clarified the law on:

  • the legal basis for national planning policy
  • the relationship between national planning policy and the development plan
  • the role of the Planning Court in interpreting the meaning of policy as distinct from its application
  • the operation of the Presumption in Favour of Sustainable Development (NPPF/ paragraph 14)
  • the breadth of the policies covered by the phrase ‘relevant policies for the supply of housing’ (NPPF/49).

What does this case mean for the development industry?

The key message for developers is that settlement boundary policies can be given reduced weight if they are based on out-of-date housing requirements.

That will be critical to the planning balance and role played by other material consideration, such as the need for more market and affordable housing. And of course, any shortfall in the five year supply of housing land.  

In addition to Lord Carnwath's leading judgment, Lord Gill commented:

“These requirements, and the insistence on the provision of “deliverable” sites sufficient to provide the five years’ worth of housing, reflect the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five-year period.”

“Among the obvious constraints on housing development are development plan policies for the preservation of the greenbelt, and environmental and amenity policies and designations such as those referred to in footnote 9 of paragraph 14. The rigid enforcement of such policies may prevent a planning authority from meeting its requirement to provide a five-years supply.”