Cheshire East Council v SSHCLG and Mr and Mrs Kirkham [2018] EWHC 2906 (Admin)

The High Court today handed down judgment in a case concerning an Inspector’s duties to correctly assess whether the existence of a 5yrHLS has been demonstrated. The case was concerned with an appeal decision made under the old NPPF. The Inspector had followed the position of two previous Inspectors who had decided that the tilted balance under paragraph 14 was engaged on the basis of housing land supply. In doing so, the previous Inspectors had stated they were erring on the side of caution in applying the tilted balance as the 5yrHLS was so finely balanced.

Cheshire East sought to argue before the High Court that the previous Inspectors’ approaches (which had been endorsed by the Inspector in the decision under challenge) were unlawful primarily on the ground they had misinterpreted the NPPF in relation to the circumstances when the presumption in favour of granting permission in paragraph 14 is to be applied and thereby incorrectly applied the tilted balance on a precautionary basis.

Justine Thornton QC in delivering judgment recognised that it was for the LPA to demonstrate the existence of a 5yrHLS and an Inspector on appeal must determine whether such a supply had been demonstrated. She went on to accept the Defendants’ submissions that on a fair reading of the decision letters the Inspectors had identified a range of supply figures which straddled the requisite requirement and that it was entirely lawful to apply a precautionary approach when exercising planning judgment to conclude that a 5yrHLS had not been demonstrated.

The judgment further goes on to accept that references in the PPG to “robust” in both paragraphs 31 and 33 of the housing section is intended to be an echo of paragraph 49 of the NPPF which requires local planning authorities to demonstrate the existence of the requisite housing supply and that the Council’s argument that weak or inadequate evidence is good enough for sites with planning permission to be included in the supply would be a nonsensical position.

Although a case concerning the original NPPF, it is of some utility in re-iterating the importance of LPA’s themselves being able to demonstrate 5yrHLS’s and having proper evidence for anything that they are including in their supply.

Freddie Humphreys was instructed by Emily Williams from Addleshaw Goddard for the Second Defendant. Please click here to see his website profile


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