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

Under paragraph 49 of the National Planning Policy Framework, “policies for the supply of housing” are policies making provision for housing, not every policy which indirectly restricts housing development. Policies protecting specific areas or features, such as gaps between settlements, fall outside that expression. Such a policy must be applied under the statutory plan-led scheme, subject to material considerations and any applicable provision concerning out-of-date policies.

A policy cannot be divided so that its housing-restrictive effect is disregarded while its environmental or settlement-separation purpose is retained. The sustainability of development remains a planning judgment on the evidence in each case. An inspector’s error in treating a protective policy as out-of-date will generally require reconsideration where the policy contains an unaddressed exception or other provision which might have affected the result.

The Council brought a claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision to grant outline permission for up to 146 dwellings at Willaston.

The inspector found that the Council lacked a five-year supply of deliverable housing sites. He therefore reduced the weight given to policies controlling development outside settlement boundaries and treated Policy NE.4, protecting Green Gaps, as a policy for the supply of housing under paragraph 49 of the National Planning Policy Framework. He nevertheless considered the policy’s settlement-separation purpose and granted permission.

The central issues were whether the inspector had adopted the correct approach to sustainable development and housing supply, and whether Policy NE.4 fell within paragraph 49 and could be divided according to its purposes.

1. Claim allowed; decision quashed. The inspector’s decision was affected by an error of law concerning Policy NE.4 and the appeal had to be considered afresh.
2. The sustainability of a development is a planning judgment for the inspector on the evidence in the individual case. The National Planning Policy Framework does not prescribe a sequence requiring sustainability to be determined before the weight of development-plan policies or the housing-supply issue. It was therefore lawful to address those matters first where they were relevant to sustainability.
3. The inspector was entitled to conclude, on the evidence, that the Council could not demonstrate a five-year supply against fully assessed objective housing needs of 1,350 dwellings per annum. Earlier decisions based on the Regional Spatial Strategy figure were of limited evidential value, particularly because the figures had generally been agreed and later evidence had not been critically assessed. Following Hunston v Secretary of State for Communities and Local Government, a constrained figure could not lawfully be treated as the full objectively assessed need.
4. Paragraph 49 refers to policies which make provision for the supply of housing. It does not extend to every policy which indirectly restricts housing development. The distinction drawn in South Northamptonshire Council v Secretary of State for Communities and Local Government between general development restrictions and policies protecting specific areas or features was material and had to be respected.
5. Policy NE.4 was a Green Gap policy designed to preserve the separation and definition of settlements and protect landscape character. It was therefore not a policy for the supply of housing within paragraph 49. The inspector erred in treating it as out-of-date on that basis.
6. A policy of this kind cannot be divided by perceived purpose. If paragraph 49 applies, the policy is effectively disapplied in its entirety; if it does not, it must be considered under section 38(6) of the Planning and Compulsory Purchase Act 2004, subject to material considerations. The inspector also failed to consider Policy NE.4’s requirement that no suitable alternative location be available.
7. It was unsafe to uphold the decision on the basis that the outcome would inevitably have been the same. The court could not substitute its own planning assessment for the assessment required under the adopted policy.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990. The court quashed the inspector’s decision dated 1 August 2014 and directed that the planning appeal be considered afresh.