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Cheshire East challenge on prematurity fails

DATE: 26 Apr 2013

HH Judge Pelling QC today rejected a s. 288 challenge brought by Cheshire East BC to a decision of the Secretary of State for Communities & Local Government to grant planning permission on a recovered appeal for the erection of up to 269 dwellings and associated works at a site south of Hind Heath Road, Sandbach, Cheshire to Richborough Estates (Sandbach) Limited: Cheshire East v Secretary of State for Communities & Local Government & Others CO/322/2013.

The original decision in this matter was quashed by consent and was the subject of some consideration by the High Court and Court of Appeal in R (Fox Strategic Land and Property Ltd) v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6.

The re-determined decision reasoned:

“25. The preparation of the CS and related plans will enable potential sites to be assessed together but the Framework makes clear that housing applications should be considered in the context of the presumption in favour of sustainable development. Each case must be considered on its merits and in the light of current policies. The Secretary of State has carefully considered representations on whether allowing this appeal would prejudice the plan making process. The Secretary of State considers that the size of development proposed in this case is not so substantial, or the cumulative effect would be so significant, that granting planning permission would prejudice decisions about the scale, location or phasing of land for new development in the CS. The Secretary of State notes from the representations that other sites not yet the subject of planning applications may come forward, but as the district housing requirement has yet to be determined through the CS, he does not consider that there is a strong prematurity argument in this case.”

Cheshire East argued that this  was unlawful, and contrary to the guidance on prematurity in the Planning System: General Principles. The Court rejected this saying:

“11.  The SSCLG’s reasoning seems entirely clear. He identified the materials that together contained the only extant development plan available as being the material identified in Paragraph 12 of the Decision Letter. He noted that on any view there was a shortfall in the 5 year supply of deliverable housing sites in Cheshire East. That is a conclusion that could be reached only by reference to the housing requirements to be found in the regional strategy document. In Paragraph 21 he refers expressly to the housing requirements identified in the Regional Strategy.
12.  The issue that is turned to in Paragraph 22-25 is the prematurity point that was relied on by CEBC. The relevant policy emphasises that where a Local Plan is being prepared or is under review, permission might be refused on grounds of prematurity because the proposed scheme ought to be considered only in light of the new plan that is in the course of development. However, that is likely only to be so where the proposed development is “ … so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by predetermining decisions about the scale, location or phasing of new development which are being addressed in the policy …”. The SSCLG concluded in Paragraph 25 of the Decision Letter that the proposed development did not fall within this category. It is not suggested by CEBC that SSCLG was not entitled to reach that conclusion nor is that conclusion of itself challenged. Plainly that was a conclusion that was open to SSCLG having regard to the conclusion reached in Paragraph 18 of the Decision Letter that the shortfall in the 5 year supply of deliverable housing sites in Cheshire East equated to an estimated 5 year shortfall of between 2000 to 2600 new dwellings.
13.   The point being made in the sentence that follows is that the only basis on which a judgment could be reached concerning size and cumulative effect was on the basis of the material that was available concerning housing requirements. The final sentence of Paragraph 25 is saying simply that if the developing Core Strategy had reached such a state of development that a district housing requirement had been identified that might have significantly impacted on the judgment to be made concerning the size of the development, or its cumulative effect but the absence of such material meant that what might otherwise have supported a prematurity argument was simply not available. Read as part of a whole the sentence that is objected to makes clear sense.
15. ... in my judgment it is simply not correct to suggest as does CEBC that the policy contained in paragraphs 17-19 of Planning System – General Principles 2005 has been misunderstood or misapplied”.

James Maurici QC appeared for the Secretary of State.