Government will not defend legal challenge that could reignite attempt to build over 900 homes in rural Preston
A pivotal planning decision which has implications for housing numbers across Central Lancashire is to face a high court challenge - and the government agrees that the ruling should be “quashed”.
Wainhomes is contesting a planning inspector’s rejection of an appeal by the housebuilder against a South Ribble Borough Council decision to refuse permission for 100 new homes in the village of Whitestake.
But the outcome of that case was also the basis for the recent reversal of a series of controversial approvals for more than 900 homes in rural Preston.
Two of the applicants for those developments - which span areas including Broughton, Goosnargh and Whittingham - have told the Lancashire Post that Preston City Council will defer issuing an official “decision notice” confirming the refusals until the outcome of the Wainhomes appeal. However, the authority has not publicly stated how it intends to proceed.
But the Post can also reveal that the Secretary of State for Housing, Communities and Local Government has opted not to defend the Whitestake case after accepting Wainhomes’ claim that the planning inspector was wrong in one aspect of his ruling.
A letter filed by the Government Legal Department to the High Court in Manchester states that the inspector failed to “expressly consider [a] specific point” put by Wainhomes in its original appeal - and had failed to “give adequate reasons” for his judgement as a result.
That was one of five grounds on which the developer is now contesting the decision - and the only one which the government accepts.
If Wainhomes wins the case, planning permission is not automatically granted - the matter would be referred back to the Secretary of State.
The submission also makes it clear that South Ribble will have to foot the bill for any future costs awarded in the case, should it be lost by the authority.
The government document reveals that the Secretary of State will cover costs incurred up until 17th February - the date on which he advised the court that he would “not be playing any further active role in the proceedings”. But beyond that date, he suggests that South Ribble should bear the burden of continuing to defend the case.
However, the authority’s cabinet member for planning and regeneration, Bill Evans, said the borough was prepared to fight the case “despite the position taken by the Secretary of State.”
“The council has taken legal advice and has considered the position carefully. South Ribble Borough Council considers that the planning inspectorate decision on the proposal was the right one and should be defended,” Cllr Evans said.
Council leader Paul Foster added that the authority considered the planning inspector’s conclusion to be “robust”.
“We think the important decision made was the right one and has significant implications for the borough and wider Central Lancashire in terms of understanding national policy and guidance,” Cllr Foster said.
The case is once again likely to have ramifications far beyond the parcel of land off Chain House Lane to which it relates.
The planning inspectorate’s decision in the Whitestake case assessed the way in which housing targets were calculated in South Ribble under an arrangement with its neighbouring Central Lancashire authorities in Preston and Chorley.
His conclusions led Preston City Council’s planning committee to revisit more than a dozen pending or outstanding applications - and to refuse nine of them.
The authority said that it cannot “comment or speculate on possible outcomes” of the current appeal in the South Ribble case.
Wainhomes said that it was unable to comment on an ongoing legal matter. The Ministry of Housing, Communities and Local Government did not respond to requests for comment.
HOW DID WE GET HERE?
National planning rules oblige every local authority to be able to demonstrate that it has a five-year supply of land available in order to meet housebuilding targets. If a council is deemed to fall short of being able to fulfil its new housing needs, it loses some control over deciding where homes can be built.
In those circumstances, there is a presumption that applications will be approved - even if they are for land which has not been earmarked for development - unless the adverse impacts of granting permission would “significantly and demonstrably outweigh the benefits”.
For almost two years, Preston City Council has found itself in just that situation, faced with a slew of bids to build on land not reserved for housing in the authority’s local plan - mostly in villages to the north of the city.
It followed an appeal case in 2018 which overturned a decision by the council to refuse permission for two developments in Broughton. In the process, Preston’s planners conceded that they did not have the five-year land supply needed to build their minimum housing target of 507 properties.
Back in 2012, Preston, South Ribble and Chorley councils agreed to pool their targets and redistribute them according to a local arrangement between the trio. So when South Ribble was challenged over the extent of its available housing land after rejecting an application to build in the village of Whitestake last year, the ruling was always likely to have an effect on the authority’s neighbours.
That decision, arrived at by a planning inspector last December, found that the 2012 figures were out of date and that a new “standard method” recently introduced by government legislation should now be used to calculate housing targets. He concluded that a decision to continue with the same pooled figures in 2017 did not constitute a formal review, which would have given them greater weight.
The new calculation lowered the overall Central Lancashire figure and - after another proposed redistribution between the three authorities - Preston’s target came out at 410 homes per year. Crucially, that allowed the authority to demonstrate a five-year supply of land.
But many of the permissions granted by the city council’s planning committee over the previous 18 months had yet to be formally confirmed with publication of the required ‘decision notice’. That was because Wyre and Preston North MP Ben Wallace had asked the Communities Secretary to ‘call-in’ the decisions, so concerned was he about the impact of such significant developments in rural areas - resulting in a so-called holding direction being placed on them.
The call-in decision has still not been communicated to the council in writing, leaving the applications in a kind of planning limbo. It meant Preston could reassess its previous decisions based on the ruling in the South Ribble case - leading to plans for 944 homes which were originally approved being rejected earlier this month.
Should the legal challenge to the planning inspector’s Whitestake conclusion be successful, the exact impact on the Preston applications is not certain.
The Post has been told by two of the applicants that the city council is awaiting the outcome of the high court case before making its next move - but the authority has said it cannot comment while a legal case is ongoing.
However, depending on the contents of that judgement - and the authority’s response to it - the final word on nearly 1,000 new homes in rural Preston may not yet have been heard.
“DID THEY THINK WE WERE JUST GOING TO GO AWAY?”
An agent for one of the Preston planning applications which was refused after being reconsidered by the city council’s planning committee says he has “never come across anything like it” during decades spent in development.
Andy Bradshaw is involved in the sale of land at 126A Whittingham Lane in Broughton, for which he originally secured permission for 111 homes in January 2019.
He blasted the authority over the way it has handled the situation - particularly its claim that it was hindered by receiving only a phone call from the government advising that the Secretary of State was not intending to call-in approval of the plans for reconsideration.
“In light of what the government said, the council should have held on - but they just rode roughshod over everything,” Mr. Bradshaw said.
“Their excuse is that they didn’t have anything in writing - so why didn't they ask for it? Instead, they just went ahead with these refusals.
“They’ve gone to the committee with misleading information. As soon as Preston City Council got that phone call, they should have signed the section 106 [planning agreement], as we had permission in place.
“We gave the planners exactly what they wanted - a £400,000 bus service contribution and 40 affordable homes.”
Mr. Bradshaw claims that the costs involved in putting together the application totalled £130,000 - and that work has also been undertaken to connect utilities to a neighbouring estate on which work has already begun.
“Did they think after all this money we’ve spent that we were just going to go away?” he asked
“The council have even come to us to discuss what we can build [in the area] - they say they’d like to accommodate building. But why should we put a new application in when the original one was passed?
“It’s unreal - as wrong as wrong can be.”
Chris Hayward, Preston City Council’s director of development said the authority “works hard to maintain an open dialogue with agents and developers who are interested in Preston”.
“As a matter of course, we have discussed with the agent the barriers and legitimate concerns of the parish council, as well as possible options for the future.”
Responding to the other issues raised, Mr. Hayward added: “Following planning committee’s initial resolution in January 2019 to approve this and a number of other planning applications subject to the conclusion of legal agreements, the Secretary of State for issued a holding direction* to the city council. This meant that we were unable to grant permission on these applications until he had considered whether to call in the application for determination.
"This holding direction remains in place until we receive written confirmation from the Secretary of State, regardless of informal verbal indication that the applications are unlikely to be called-in. This has resulted in significant delays to decisions, with our robust challenge to what we considered unjustified delays falling on deaf ears. Although it continues to prevent the council from approving an application until lifted, it does not prevent planning committee from resolving to refuse the application.
"The result of the recent appeal decision in South Ribble by the Planning Inspectorate and the associated analysis of housing land supply in Preston has led to us to reconsider all undetermined applications for residential developments in Preston, including the application for land to the rear of 126A Whittingham Lane.
"We have taken legal advice on this matter and it is right and proper that the changes in circumstances are reported to Committee and they have the opportunity to reconsider decisions on applications where planning permission hasn’t been granted. This application was reported back to our planning committee on 13th February and was refused.
"We are aware that there is an ongoing high court challenge to the recent appeal decision and that the Secretary of State has conceded on one of the grounds of the challenge. However, we consider that the appeal decision is robust and support the decision by South Ribble Borough Council to defend it. We will continue to take the conclusions drawn from the appeal into account when determining planning applications unless and until the decision is set aside by the high court. We remain committed to delivering significant growth for the city, and doing so by implementing a plan-led approach to development," Mr. Hayward added.
Meanwhile, Wyre and Preston North MP Ben Wallace - who requested the call-ins - said he has been “greatly concerned by the significant number of large-scale planning applications submitted in respect of land in and around Goosnargh”.
"It must be remembered that the local plan proposed no development in the village on the grounds that this would be unsustainable. [It] also sought to protect the open countryside and area of separation surrounding the village.
"I asked the Secretary of State to consider calling in the applications for his determination as I felt that Preston City Council’s planning policy was out of control as the council had refused, at that point, to review its housing target numbers and was no longer upholding the local plan. I welcome the council’s decision in December to implement the government’s standardised methodology for calculating housing need – something which I had long called for – which has seen the council’s housing target reduced and as a consequence the council can now demonstrate a five year supply of housing.
"I hope very much this will enable the council to uphold the provisions of the local plan. I was pleased to see that the planning committee indicated that it would now like to refuse seven of the applications which I sought to call in. I understand that the Secretary of State is still monitoring the applications and that a holding direction will remain in place, until the council advises the Secretary of State that it wishes to refuse the applications or the Secretary of State makes a decision on whether to call-in the applications. I remain in contact with the Secretary of State’s Office and am monitoring this matter closely.”
These are the nine applications originally passed and then rejected by Preston City Council’s planning committee - based on a planning inspectorate decision which is now being challenged in the courts:
Land at Cardwell Farm, Garstang Road, Barton - 151 properties
Land north of Whittingham Lane, Goosnargh - 145 properties
Bushells Farm, Mill Lane, Preston - 140 properties
Land to the north of Jepps Lane, Barton - 125 properties
Land to the rear of 126A Whittingham Lane, Broughton - 111 properties
Land north east of Swainson Farm, Goosnargh Lane - 87 properties
Land south of Whittingham Lane, Goosnargh - 80 properties
Land at 826 Whittingham Lane and land to the south/rear of Chingle Hall Cottage - 65 properties
Land at Swainson Farm, Goosnargh Lane - 40 properties