Parish fails in High Court challenge to permissions for 229 homes

Sir Ross Cranston, sitting as a High Court judge, said the three applications involved were not in accordance with the local development plan but were granted because Babergh could not demonstrate a five year housing land supply.

They were therefore allowed under the provision of the National Planning Policy Framework that permits applications for developments deemed sustainable in this situation.

East Bergholt had successfully challenged an earlier grant of planning permission for homes in the village.

But the new case turned on claims that Babergh had not lawfully exercised its discretion when assessing deliverability in the context of a five year land supply.

East Bergholt contended that the officer's report did not direct councillors as to whether the scheme’s opponents had a point to make, and that an error in the calculation of the land supply was not corrected.

In East Bergholt Parish Council v Babergh District Council [2018] EWHC 3400 (Admin) Sir Ross decided: “I cannot accept that the officer's reports for the three sites were misleading, certainly not significantly misleading, in not directing councillors as to what is said was the error in the council's 2017 [five year supply]. On their face there was nothing in my view untoward in the officer's reports.”

He also ruled that Lindblom LJ's judgment in St Modwen Developments Ltd v Secretary of State for Communities and Local Government did not mean Babergh was wrong to take into account developer pressure and that the developers might mount legal challenges against the council.

“It is not unlawful for a local planning authority to want to have confidence that it will be able to robustly defend the judgments it forms on the deliverability of housing sites,” Sir Ross said.

“For that reason the concern about challenges from developers was lawfully taken into account as a factor in decision-making.”

He also dismissed a claim that Babergh had acted unfairly in giving four days’ notice rather than five of papers for the meeting concerned.

Mark Smulian