Lanner Parish Council v The Cornwall Council & Anor

An unadopted and outdated planning policy must be taken into account, but the decision-maker may give it little weight or disregard it where other material considerations justify departure. A numerical limit in such a policy does not prevent departure where the authority has a lawful planning discretion to do so.

Assessment of affordable housing need is ordinarily a matter of planning judgment. The court may intervene for an error of law, failure to consider a material consideration or perversity, but it cannot reweigh imperfect survey and register data. Evidence must inform the decision, although it need not provide a precise or statistically conclusive measure of housing need.

Lanner Parish Council sought judicial review of Cornwall Council’s decision to grant Coastline Housing Limited planning permission for 25 affordable dwellings on a rural exception site outside Lanner’s development boundary.

The Council relied on draft policy H20 of the 2004 Kerrier Local Plan, Cornwall Structure Plan policies and national planning guidance. The claimant argued that H20 imposed a cap of about 12 dwellings and that the Committee had relied on incomplete and wrongly analysed housing-need data. The central issues were whether the Committee had misunderstood or unlawfully departed from H20, and whether its evaluation of the evidence of local need was legally reviewable.

1. The claim was dismissed. The Committee had correctly understood that policy H20 ordinarily limited larger village exception sites to about 12 dwellings. It nevertheless had a planning discretion to give the unadopted policy little weight or to depart from it where other material considerations justified that course.

2. H20 was outdated, had never been adopted as a development plan policy, was regarded as unfit for purpose, and was being reconsidered against an acute shortage of affordable housing. The Committee was entitled to take those matters into account, together with evidence of local need and the suitability of the site. Its advice that permission could be granted was therefore not a misstatement of H20.

3. The Committee’s assessment of local need involved planning policy and judgment. The relevant evidence included Coastline’s survey, the Parish Council’s survey, the Cornwall Homechoice Register and the members’ local knowledge. Those materials were indicative rather than statistically conclusive, but the Committee was entitled to decide what evidence to obtain, how to interpret it and what weight to give it.

4. Following the distinction explained by Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment and others [1995] 2 All ER 636, whether a matter is material is a question of law, whereas its weight is a matter of planning judgment. The court could intervene for an error of law, failure to take account of a material consideration or perversity, but could not substitute its own view of the housing data or the merits of the development.

5. No glaring defect or perversity was established. The Committee’s decision to rely substantially on the Homechoice Register and to approve the 25-dwelling scheme was therefore lawful.