Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government & Ors

A planning policy must be interpreted objectively, by reading its language in its proper context, while recognising that a development plan is not a statute or contract. Where a policy distinguishes a minimum requirement from a higher target, the requirement remains the operative basis for calculating five-year housing supply unless the policy clearly provides otherwise. The weight given to a proposal’s contribution to a housing shortfall is for the decision-maker, and depends on matters including the size and likely duration of the shortfall and the contribution the development would make. Under paragraph 49 of the NPPF, policies affecting housing numbers, distribution or location may fall within the broader concept of policies for the supply of housing. Their application remains a matter of planning judgment. Out-of-date housing supply policies do not require other relevant development plan policies to be disregarded.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing its appeal against refusal of outline planning permission for 250 dwellings and associated facilities at the former Lympne Airfield in Kent.

The claimant argued that the inspector had misconstrued Policy SS2 of the Shepway Core Strategy by treating 350 dwellings per year as the housing requirement rather than the higher target of approximately 400 dwellings per year. It also argued that the inspector had misunderstood which development plan policies were relevant policies for the supply of housing under paragraph 49 of the NPPF and had given inadequate reasons.

1. The application was dismissed. The inspector had interpreted and applied Policy SS2 lawfully and had given intelligible and adequate reasons.
2. Policy SS2 drew a clear distinction between a minimum requirement of 350 dwellings per year and a target of approximately 400 dwellings per year for the first 20 years. The minimum was the operative housing requirement. The higher target was an aspiration intended to support housing delivery and wider economic and infrastructure objectives. The policy therefore required a five-year supply calculated by reference to 1,750 dwellings, not 2,000.
3. Planning policy is interpreted objectively in its proper context. The adopted development plan should ordinarily be understood from its own contents, read fairly as a whole. Resort to background documents is inappropriate where the policy is neither obscure nor ambiguous. Supporting text may assist interpretation but cannot trump the policy.
4. The weight given to a development’s contribution to a housing shortfall is a matter for the decision-maker. The decision-maker must assess not only whether there is a shortfall, but its size and significance. Relevant considerations may include how long the deficit is likely to persist, what steps the authority could take to reduce it, and how much of it the proposal would meet.
5. The concept of “policies for the supply of housing” in paragraph 49 of the NPPF has a broad scope. It may include policies which significantly affect housing numbers, distribution or location, rather than only policies specifying housing numbers. Whether an individual policy falls within that scope is a matter of planning judgment.
6. The inspector was entitled to treat saved Policy CO1 as a housing supply policy which was out of date, while concluding that Policies SS3, CSD1, CSD2 and CSD3 were not primarily directed to housing supply. The paragraph 14 presumption was engaged, but this did not require her to disregard other relevant policies when assessing the proposal’s sustainability and planning balance. She was entitled to conclude that the substantial benefits were significantly and demonstrably outweighed by the adverse environmental and settlement impacts.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application to quash the inspector’s decision was dismissed.