When is a Green Gap not a Green Gap?

When Cheshire East Borough Council lost a legal battle at London’s Court of Appeal in relation to a planning inspector’s approval for the new homes in a Green Gap at Willaston it had implications for green belt; protection of the countryside; conserving the landscape; Areas of Outstanding Natural Beauty; National Parks; conservation of wildlife or cultural heritage; protecting the local environment.

Paragraph 49 of the NPPF says that “relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

Since the council was unable to demonstrate a five-year housing land supply, the inspector decided that the council’s green gap policy could not be considered up to date and should be disapplied.

A High Court judge found that the planning inspector had been wrong to regard the green gap housing policy as one that was out of date. However, the Court of Appeal disagreed and said the inspector had “made no error of law.” and upheld the planning inspector’s decision.

The Court of Appeal ruling said: “Our interpretation of the policy does not confine the concept of
‘policies for the supply of housing’ merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites.

“It recognises that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the green belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development.

“It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”