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

In assessing whether a local planning authority has demonstrated a five-year supply of deliverable housing sites, the decision-maker must determine whether there is a realistic prospect of delivery within five years. Where the evidence produces a range straddling the five-year threshold, the decision-maker may exercise planning judgment and adopt a cautious approach in the context of the policy objective of significantly boosting housing supply. That approach is not an additional legal test.

Sites with planning permission remain subject to the requirement that there be clear evidence they will not be implemented within five years. The decision-maker must give intelligible and adequate reasons, but the court should avoid excessive legalism when reviewing an inspector’s decision.

Cheshire East Council applied under section 288 of the Town & Country Planning Act 1990 to quash an inspector’s decision granting outline permission for up to 29 dwellings at Shavington.

The inspector had relied on earlier appeal decisions concerning the Council’s five-year housing land supply. Those decisions treated the supply position as marginal, adopted a precautionary approach, and applied the National Planning Policy Framework’s “tilted balance”. The Council alleged errors concerning the trigger for that balance, evidence required for sites with planning permission, and adequacy of reasons.

1. The claim was dismissed. The inspectors had correctly treated the central question as whether the Council had demonstrated a five-year supply of deliverable housing with a realistic prospect of delivery within five years.
2. Where the evidence identified a numerical range which straddled the five-year threshold, the inspector was entitled to conclude that the Council had not demonstrated the required supply. Adopting a precautionary approach was an exercise of planning judgment in the context of the policy objective in paragraph 47 of the National Planning Policy Framework. It was not an impermissible additional test. The approach was consistent with St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643.
3. The word “certain”, read in context, expressed the inspector’s lack of confidence that the Council had demonstrated the necessary supply. It did not impose a requirement for certainty of delivery beyond the realistic-prospect test in footnote 11.
4. Footnote 11 did not prevent scrutiny of sites with planning permission. It required clear evidence that schemes would not be implemented within five years before treating them as non-deliverable. The evidence concerning stalled development, financial difficulties, revised timescales, and uncertainty over alternative land justified deductions from the supply. The requirement for robust, up-to-date evidence was consistent with the obligation to demonstrate the supply.
5. The inspectors gave adequate reasons. Their decision letters explained why the supply was not demonstrated, why the tilted balance was engaged, and why the relevant sites were excluded or reduced. The court was not entitled to revisit planning merits or subject the letters to hypercritical scrutiny.