Home > Cases > “up to 6” does not meet 5: Court of Appeal quashes Somerset planning permission

Stephen Whale of Landmark Chambers (instructed under Public Access) has successfully represented the appellant, John Harvey, in the Court of Appeal, overturning the High Court in a case concerning the correct interpretation of a development plan policy.

North Wootton is a small rural hamlet in Somerset, not far from the site of the Glastonbury festival.  There is a paddock in the hamlet, adjacent to the appellant’s home.  Two former North Wootton residents applied to Mendip District Council for outline planning permission to build a dwelling for themselves on the paddock plus “up to 6” affordable houses on a part of the paddock to be gifted to a development company.

The relevant criterion in development plan Policy DP12 provides as follows:

“a) the development will provide affordable homes that meet a clearly identified need for affordable housing as identified in the latest Local Housing Needs Assessment specific to that settlement”

The latest Local Housing Needs Assessment specific to North Wootton identified a need for 5 affordable houses.

When the application came before the Planning Board of Mendip District Council, the members concluded that it was in accordance with Policy DP12 and they resolved to grant planning permission.  Mr Harvey brought a judicial review challenge to the planning permission.  The High Court (His Honour Judge Jarman QC) rejected the claim.  He adopted the submissions of the other parties to the effect that Policy DP12 does not require or contemplate the “rigid approach” said to have been adopted by Mr Harvey, and that the planning authority had been entitled as a matter of “planning judgment” to conclude that the proposal for “up to 6” affordable houses “met” the identified need for 5 affordable houses.  The Judge refused permission to appeal, but Mr Harvey persevered and was rewarded when Lord Justice Lewison granted permission to appeal.

The Court of Appeal has today vindicated Mr Harvey’s challenge.  Giving the leading judgment, and applying Tesco Stores Ltd v Dundee CC [2012] PTSR 983, Hopkins Homes Ltd v Secretary of State [2017] PTSR 623 and R (Cherkley Campaign Ltd) v Mole Valley DC [2014] EWCA Civ 567, Lord Justice Sales accepted Mr Whale’s submissions and concluded that, on an objective interpretation, Policy DP12 in its proper context only permitted the grant of planning permission for up to 5 affordable houses such that the Planning Board had erred in law.  Lord Justice McFarlane agreed.  The appeal was allowed and the planning permission was quashed, with costs.  It is the sixth time that Mr Whale has overturned the High Court in only the last three years.

The case is a salutary reminder of the importance of correctly interpreting development plan policies, and of the role counsel and the courts play in that process.

For a copy of the Judgment, click here.

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