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

In a challenge under Town and Country Planning Act 1990, the court reviews the lawfulness of the planning decision, not its planning merits. An inspector need not quantify the precise housing-land shortfall if the material question is whether a five-year supply exists. Where there has been persistent under-delivery, a 20% buffer under paragraph 47 of the National Planning Policy Framework may be required. A development may contribute to the economic dimension of sustainable development through its contribution to housing supply, even though housing is excluded from the Framework’s narrower definition of economic development. Under regulation 9(5) of the Conservation of Habitats and Species Regulations 2010, a planning inspector need not conduct the licensing authority’s detailed assessment under Article 16 of the Habitats Directive. Planning permission may ordinarily be granted unless the development is likely to offend Article 12 and is unlikely to be licensed.

Rowland Homes Ltd appealed under section 78 of the Town and Country Planning Act 1990 against Cheshire East Council’s refusal of permission for 94 dwellings at Elworth Hall Farm, Sandbach. An inspector appointed by the Secretary of State allowed the appeal and granted permission.

The Council applied under section 288 of the 1990 Act to quash that decision. It alleged errors concerning the five-year housing-land supply, the Framework’s presumption in favour of sustainable development, and the inspector’s duties concerning European Protected Species under regulation 9(5) of the Conservation of Habitats and Species Regulations 2010. Permission to amend the claim to add the habitats ground was granted.

1. The claim was dismissed. The inspector lawfully concluded that Cheshire East could not demonstrate a five-year supply of housing land, and gave adequate and intelligible reasons.
2. The inspector was entitled to find persistent under-delivery and apply the 20% buffer required by paragraph 47 of the Framework. The issue was whether the available land was sufficient to meet the relevant requirement over five years. It was unnecessary to identify the precise quantity of land available. The inspector was entitled to reject revised assumptions about build rates and lead-in times because the supporting evidence was not sufficiently robust or comparable with the earlier analysis. He was also entitled to conclude that the proposed care-home capacity would not eliminate the shortfall.
3. The inspector did not confuse “economic development” with housing development. Although the Framework glossary excludes housing from the narrower definition of economic development, paragraph 7 requires the economic, social and environmental dimensions of sustainable development to be considered. The contribution of housing construction and housing supply could properly be given weight.
4. Permission to amend was granted because the habitats issue was arguable, the evidence was already before the court, and there was no prejudice.
5. Under regulation 9(5), the inspector had to have regard to the Habitats Directive so far as affected by his planning function. Following R (Morge) v Hampshire County Council and R (Prideaux) v Buckinghamshire County Council and FCC Environment UK Ltd, he was not required to undertake the licensing authority’s detailed assessment of Article 16. If permission was otherwise justified, he could grant it unless the development was likely to offend Article 12 and unlikely to be licensed under the derogation powers.
6. The inspector proceeded on the basis that European Protected Species might be present and that relocation might require a licence. No party contended that a licence was unlikely to be granted. He therefore discharged regulation 9(5). The criminal protections and licensing regime continued to apply notwithstanding the grant of planning permission.

The Secretary of State’s inspector allowed Rowland Homes Ltd’s section 78 planning appeal and granted permission for 94 dwellings. The High Court dismissed the Council’s subsequent section 288 challenge.