Cheshire East Borough Council v Secretary of State for Communities and Local Government & Ors

In a planning challenge, the weight given to a material consideration is ordinarily a matter for the planning decision-maker. The court intervenes only where the assessment is irrational or infected by legal error. National planning policy must be interpreted objectively, but policy guidance is read practically and in context rather than as a statute. A reasons challenge succeeds only where the decision does not enable an informed reader to understand how the principal issue was resolved and the deficiency causes substantial prejudice. Where a local planning authority cannot demonstrate the housing land supply required by the National Planning Policy Framework, relevant housing policies are out of date and the policy presumption in favour of sustainable development is engaged. The five-year supply includes the applicable buffer.

The Council refused an application for outline planning permission for up to 200 dwellings at Loachwood Farm. On appeal under section 78 of the Town and Country Planning Act 1990, the Secretary of State’s inspector allowed the appeal and granted permission.

The Council brought a claim under section 288 of the Town and Country Planning Act 1990. It ultimately relied on two grounds: that the inspector had misunderstood or inadequately explained the weight given to the Council’s Interim Planning Policy on the Release of Housing Land, and that he had misunderstood the housing land supply requirements in the National Planning Policy Framework. The court also determined applications to amend, strike out and obtain summary judgment.

Claim and applications dismissed. The reformulated grounds were unarguable. The application to amend was refused, the original claim was struck out, and the Council’s cross-application for summary judgment was dismissed.

1. The weight given to a material consideration is exclusively a matter of planning judgment for the decision-maker, subject to rationality. The inspector was entitled to give the Interim Planning Policy limited weight. It was a temporary policy document, not part of the development plan, and had not undergone the statutory process and independent examination required for a development plan document. The inspector had understood the Council’s case, considered the policy’s relevance to prematurity and housing supply, and was not required to mention every submission or evidential factor.
2. The inspector’s reasons had to be read as a whole and practically. They were addressed to an informed reader familiar with the inquiry. They sufficiently explained why the policy was given limited weight, and no substantial prejudice was established.
3. The construction of national policy is a question of law, but policy guidance is not to be construed with the rigidity appropriate to a statute. Paragraph 47 of the National Planning Policy Framework defined the relevant five-year supply as five years’ housing against requirements plus the applicable buffer. That meaning applied in paragraph 49 as well as in the other related provisions.
4. The failure to demonstrate the required supply rendered relevant housing policies out of date and engaged the paragraph 14 presumption in favour of sustainable development. In any event, the difference between the figures relied upon by the inspector and those advanced by the Council could not realistically have affected the outcome.
5. An amendment to a section 288 claim should be permitted only where the resulting claim is arguable. The Council’s amended grounds failed that threshold. Costs were awarded to the Secretary of State in the agreed sum and to the Dales at 75 per cent, limited to work up to 12 March 2013.

The judgment describes an appeal under section 78 of the Town and Country Planning Act 1990. The Secretary of State’s inspector allowed the appeal and granted outline planning permission. The Council’s section 288 challenge was struck out.