The High Court in Birmingham (Hickinbottom J.) today gave an ex tempore judgment in a s. 288 claim brought by Cheshire East Borough Council challenging the lawfulness of the grant by the Secretary of State’s Inspector of planning permission for the redevelopment of land for up to 200 dwellings, community facilities and associated infrastructure at Loachbrook Farm, Sandbach Road, Congleton, Cheshire: Cheshire East Borough Council v Secretary of State for Communities & Local Government & another (CO/10273/2012).
The case had an unconventional procedural history. The claim as originally brought mirrored almost entirely the claim brought in Tewkesbury Council v Secretary of State for Communities and Local Government  EWHC 286 (Admin) and dismissed by Males J. The second and third defendants had applied to strike out that claim as disclosing no reasonable cause of action. Following the Tewkesbury decision the Claimant Council abandoned its previous claim and pursued two discrete grounds of challenge on which it applied for summary judgment against all the defendants. Hickinbotton J. ordered a rolled up hearing of the applications to strike out/ for summary judgment and the substantive s. 288 claim.
One of the new grounds the Claimant Council sought to pursue was that the Inspector had misunderstood paras. 47 and 49 of the NPPF. The argument being that in relation to development control decisions para. 49 required only the demonstration of a 5 year housing land supply and not as per para. 49 “an additional buffer of 5% … to ensure choice and competition in the market for land”. It was suggested that the buffer was applicable only to the exercise of plan making functions. The learned Judge rejected that interpretation as being incorrect. The Judgment also considers the relationship of paras. 47 and 49 to para. 14 of the NPPF.
James Maurici appeared for the Secretary of State instructed by the Treasury Solicitor’s Department.