Cheshire East raises concerns about "inconsistent" appeal decisions

Out-Law News | 26 Aug 2014 | 5:19 pm | 2 min. read

The leader of Cheshire East Council has written to housing and planning minister Brandon Lewis expressing concern at the "inconsistent" way in which planning inspectors have interpreted the borough's housing supply in recent appeal cases.

In an open letter dated 15 August, leader of the Council Michael Jones said that the Council was "doing everything we can to ensure that we are supporting the government's efforts to increase the supply of affordable housing", but that the Council's efforts to protect itself against unsuitable development pending the adoption of its local plan were being undermined by appeal decisions made by planning inspectors.

"Despite our best efforts and the input and co-operation of our residents, we are deeply concerned as a Council at the recent spate of decisions taken by the Planning Inspectorate," wrote Jones. "As well as a distinct lack of consistency with the decisions, it appears that the inspectorate is giving far greater weight to the arguments being put forward by developers than those of the Council and its residents."

Jones listed seven appeal decisions since April that he said demonstrated an "inconsistent" approach from planning inspectors to assessing whether the Council could demonstrate a five-year supply of land for housing development under UK government policy introduced in 2012.

While only one of the inspectors concluded that the Council could demonstrate a five-year supply, opinions differed as to the objectively assessed housing need for the district and whether the Council must apply an additional 20% buffer to its figures because of persistent under supply of housing in the recent past.

Three of the seven inspectors accepted the Council's argument that the objectively assessed housing need for the district was 1,150 homes per year, a figure taken from a revoked regional strategy which was based on data from 2003. Two of the inspectors had accepted the Council's figure because it was the most recent figure to have been tested by examination, despite being lower than figures suggested by more recent data. A third inspector accepted the figure since the appellant in the case had not contested the Council's position.

However, four of the inspectors had concluded that the figure of 1,350 homes given in documents supporting the Council's emerging local plan was a more suitable assessment of the district's housing need. Arguments against the lower figure included the opinion that it "has become historic, as has the evidence upon which it is based", that "the [National Planning Policy] Framework places emphasis on the use of up-to-date evidence" and that 1,150 homes per year represented a "constrained" target rather than an objective one.

The inspectors were also in disagreement over the appropriate buffer to apply to the five-year housing supply figures. In a decision on 14 July, inspector Frances Mahoney applied only a 5% buffer, saying that "I consider the current undersupply should be considered alongside the historic and cumulative robust long term record of delivery".

Three inspectors disagreed with Mahoney's position, deciding that the Council's under supply of housing land since 2008/9 constituted "persistent under delivery" that justified the application of a 20% buffer. The remaining three inspectors did not consider which buffer ought to apply, since it made no difference to whether the five-year supply was met in those cases.

Jones said that the ambiguity of the inspectors decisions "impacts on our ability to deliver a five-year supply, which is so important in protecting against unwanted development". Inviting Lewis to visit the district, Jones concluded "I will continue to robustly defend our residents against unplanned, unsustainable development, but at the same time maintaining a clear commitment to developing housing in the right place for our residents and businesses".