Town and country planning – Planning permission – Rural development – Respondent local authority granting outline planning permission for single open market dwelling and six affordable houses – Appellant objector appealing against rejection of application for judicial review – Whether judge erring in holding that development in conformity with local plan policy on rural exception sites – Appeal allowed
The first and second interested parties owned a paddock in the village of North Wootton in Somerset on which they wanted to build a new house. In order to persuade the respondent local authority to grant planning permission, they proposed to gift the rest of the land constituted by the paddock to the third interested party which would then build up to six affordable homes on that land. Outline planning permission was granted for development of the paddock to build “up to six affordable homes and one open market dwelling house” even though the respondent’s housing officer had objected to the application because she did not consider that there was a genuine need for additional affordable housing in the village. Approval of the details of the layout, scale, appearance, access and landscaping of the site was reserved to the respondent at a later stage.
The appellant, who lived in the village, brought a claim for judicial review of the decision to grant outline planning permission. At first instance, the judge rejected the appellant’s claim. He was granted permission to appeal only on the ground that, in granting planning permission the respondent’s planning board had wrongly considered that the proposed development was in conformity with Development Policy 12 (Rural Exception Sites) (DP12) in the local plan, whereas in fact the proposed development was in breach of that policy on its proper interpretation.
The respondent and the interested parties resisted the appeal. They submitted, among other things, that the planning board had taken the right decision in conformity with the local plan. In any event, it was highly likely that the planning permission would have been granted even if the planning board had not misinterpreted policy DP12 so that relief should be denied pursuant to section 31(2A) of the Senior Courts Act 1981.
Held: The appeal was allowed.
(1) The appeal was concerned with the proper interpretation of policy DP12 rather than its application to the particular facts. Policy DP12 was stated to be for “Rural Exception Sites” and applied as an exception to normal policy for the provision of housing. It was clear in its meaning, which was to the effect that a development to provide affordable homes in North Wootton would only comply with it if it met the clearly identified need, set out in a 2013 housing needs assessment, of five affordable homes.
It was a precise statement of policy of a different character from the broad statements of policy which appeared elsewhere in the local plan and in other development plans. Nor was it framed in language whose application to the facts required the exercise of planning judgment. The judge had been in error on that point. On an objective interpretation of policy DP12 in its proper context, it only permitted the grant of planning permission for up to five affordable houses. The language of policy DP12(1)(a) was clear. The word “meet” had to be read in the immediate context of the phrase in which it appeared, which referred to a need which was: (a) clearly identified, (b) in a specified source (the 2013 assessment) which stated a particular level of need; and (c) was specific to the particular settlement in question (North Wootton). All those pointers emphasised the importance of a focus on the particular quantum of housing need identified in the specified source. Consistency and direction in the exercise of the respondent’s discretionary powers would be substantially compromised if matters were left to be determined on the basis of a conflict of views about the fluctuating level of housing need at any given point in time. In that context, the word “meet” bore its ordinary meaning of “meeting, but not exceeding” the specific quantum of need identified in the clear manner specified in policy DP12(1)(a). If not read strictly, in accordance with its language, the policy would tend to allow the primary policies in the local plan to be undermined to an inappropriate degree: Tesco Stores Ltd v Dundee City Council (2012] UKSC 13, R (Cherkley Campaign Limited) v Mole Valley District Council [2014] EWCA Civ 567 and Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 applied.
(2) This was not a case in which the test in section 31(2A) of the Senior Courts Act 1981 was met. On the evidence, it could not be said that “it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. The Planning Board thought that they were acting in accordance with the Local Plan, whereas in fact the proposed development contravened it. They did not attempt to identify any reasons which might have been sufficient to counterbalance the weight they should have given to policy DP12, which on its proper interpretation indicated that planning permission for the development should be refused. They had been given good reasons by the planning officer why the application should be refused and the housing officer had called the actual need for affordable housing in the village into serious question.
Stephen Whale (instructed by Direct Access) appeared for the appellant; Tim Sheppard (instructed by Mendip District Council) appeared for the respondent; James Burton (instructed by BGW Solicitors) appeared for the first and second interested parties; the third interested party did not appear and was not represented.
Eileen O’Grady, barrister
To read a transcript of R (on the application of Harvey) v Mendip District Council, click here
