No5’s Cahill QC secures victory in appeal against East Staffordshire Borough Council
Planning expert Jeremy Cahill QC of No5 Chambers has secured victory for his client Barwood Strategic Land II and Mr and Mrs Skipper in an appeal against East Staffordshire Borough Council.
Cahill QC is head of the planning and environment group at No5 Chambers. He was instructed by Bird Wilford & Sale.
East Staffordshire Borough Council had previously refused to grant planning permission for a development of up to 250 dwellings on land at Red House Farm, Lower Outwoods Road, Burton-upon-Trent.
Cahill QC also secured a partial award of costs against the counsel due to its unreasonable behaviour.
Application for planning approval was originally made in September 2012 and refused on 20 March 2013. The appeal was recovered on 20 May 2013 by the secretary of state and a public local inquiry was held for four days in August 2013 by inspector Martin Whitehead LLB BSc (Hons) CEng MICE.
The proposed development includes 15 per cent affordable housing of a maximum of 250 dwellings, associated structural landscaping including woodland planting, public open space, access, drainage, associated infrastructure, earthworks and demolition of existing buildings. The approximately 13.4-hectare site is west of Burton-upon-Trent.
The council disputed the level of affordable housing, seeking in excess of 15 per cent, but both the inspector and the secretary of state agreed that the development’s proposed proportion of 15 per cent was appropriate. The inspector made a recommendation that the appeal should be allowed and the secretary of state granted planning permission as East Staffordshire Council was unable to demonstrate a five-year supply of deliverable housing sites and so a ‘presumption in favour of sustainable development should apply’.
The secretary of state and the inspector believed that the proposed development recognised ‘the intrinsic character and beauty of that part of the countryside’ and that any negative impact the development may have was far outweighed by the benefits it brought to the town and local economy.
Turning to the award of partial costs, Cahill QC argued that East Staffordshire Council had behaved in an unreasonable fashion, unnecessarily wasting costs for the appeal, which should not have needed to be recovered by the secretary of state. Under cross examination by Cahill QC, the council admitted that it did not have a five-year housing land supply, which it had avoided doing previously even though it had been made aware of the fact that Barwood Strategic Land II and Mr and Mrs Skipper had invested significant time and money in the legal proceedings.
The council had known it did not have a five-year housing land supply in accordance with the framework but had continued to refuse planning permission. The inspector had calculated that ‘the supply of deliverable housing sites is more likely to be in the region of three years’. The inspector determined that ‘unreasonable behaviour resulting in unnecessary expense…has been demonstrated in respect of the five-year housing land supply’ and he concluded that partial award of costs was justified.
Appeal Ref: P/201201215 was successfully made under section 78 of the Town and Country Planning Act 1990. Application for costs APP/B3410/A/13/2197299 was made under the Town and Country Planning Act 1990, sections 78 and 320, and the Local Government Act 1972, section 250 (5).
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