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Watery Lane development legal challenge

Following a legal challenge, the High Court finds in favour of the Secretary of State.

Lichfield District Council is very disappointed to have lost its legal challenge against the Secretary of State’s decision to grant planning permission on appeal for 750 dwellings on land to the north west of Lichfield at Curborough.

The council believes the decision undermines confidence in the planning system for local residents, communities and elected members. In particular this decision challenges the acknowledged principles that having an up-to-date Local Plan and a five year land supply will offer a level of protection against speculative applications, which are not supported locally and not required to meet identified needs. 

This decision is not only contrary to the view of an independent inspector, who recommended refusal, the scale and nature of the development could also undermine future plan making in the district and the consideration of options for further growth.

Of the decision Cllr Ian Pritchard, Cabinet Member for Economic Growth, Environment and Development, said:

“While we accept the High Court’s view that the Secretary of State’s decision was not unlawful in disagreeing with the planning inspector, the fact remains that this is a bad decision for Lichfield District and for the planning system in England.

“By producing up to date local plans and planning to meet needs within an area, national planning policy makes it clear that local authorities, such as Lichfield District Council, will be supported in refusing applications that are not in accordance with a plan. This is a well-established and understood principle that provides certainty and confidence in decision taking. 

“Unfortunately, in this case the Secretary of State’s desire to see more houses developed in England has completely overridden any other considerations, including the fact that we are planning to meet our needs and carrying out this responsibility.”

For the full judgment, download the High Court judgement.

Extra information about the case:

IM Properties in 2014 submitted a planning application to Lichfield District Council (LDC) for the development of 750 dwellings, a primary school, care village and associated neighbourhood facilities on land off Watery Lane, Curborough in Lichfield.

In May 2014 the application was refused by LDC on the basis that the site in question was not allocated for development in the approved and up to date Local Plan and was an unsustainable location. Furthermore, the scheme would have adverse impacts on the local landscape, the setting of a listed building, views of Lichfield Cathedral, ancient hedgerows and trees and biodiversity. Finally, there was an identified five year land supply in the district to meet housing needs in accordance with national planning policy. The decision was subsequently appealed by the applicant.

In September 2014 the Secretary of State (SoS) took the decision to recover the appeal for his determination as it constituted residential development of over 150 dwellings or five hectares, and therefore was deemed to be of significance given government policy on new housing.

In March 2015 an eight day public inquiry took place before an Independent Planning Inspector.  After a further period of time to request and consider further representations the Inspector in March 2016 published his report into the appeal application and recommended refusal.

In February 2017 the Secretary of State having considered the Inspector’s report issued a decision letter allowing the appeal and granting planning permission for the development. The SoS agreed the proposal was in conflict with the approved Local Plan and also that there was a five year housing land supply. He also recognised the development would harm environmental assets. However, despite this the SoS concluded that the social and economic benefits of providing affordable and market housing outweighed any such concerns and hence the proposal would constitute sustainable development.

Lichfield District Council was given leave to challenge the Secretary of State’s decision in the High Court in April 2017. The council raised the challenge on four grounds:

1. The SoS failed to apply the correct tests in assessing the impact of development on ancient trees and historic hedgerows.
2. The SoS failed to have due regard to the absence of a need for this development of this scale and in this location.
3. The weight given by the SoS to affordable and market housing over other key considerations in his decision showed an error of reasoning.
4. The SoS failed to explain why how he reached the decision contrary to the inspector’s report and findings.

In July 2017 the High Court in Birmingham sat for two days to consider the case against the Secretary of State. A week later on the 28 July the judge, Judge Singh issued the decision of the court stating that Lichfield District Council’s case had failed on all four grounds presented. 

The view of the court was that the SoS had given consideration to all relevant policies and material considerations, and having weighed up arguments for and against the proposal had reached a decision that was appropriate and reflected the same.  Unless, there was a clear failing in law or in the interpretation of law it was not for the courts to intervene in the actions of a decision maker, in this case the SoS.  

In the circumstances Judge Singh indicated further that he would not allow the decision to be appealed in the Court of Appeal and that the costs of the SoS should be met by the district council.

On 15 September 2017 Judge Singh released his written judgement.   Following consideration of the written judgement and advice from its legal advisors Lichfield District Council has decided not to appeal the decision of the court.

Posted on Tuesday 10th October 2017

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