New Dawn Homes Ltd v Secretary of State for Communities and Local Government

In construing a development plan policy, the court must identify the objective meaning of the language used. Supporting or explanatory text may assist that interpretation and elaborate the policy, but cannot impose an additional requirement absent from it. Where a policy refers to development on “sites” above a housing threshold, the term need not be confined to the land within a single planning application. A planning decision-maker may use planning judgment to determine whether separate areas form part of a larger site or development. That judgment is reviewable only on orthodox public-law grounds, such as irrationality or reliance on legally irrelevant considerations. The policy may apply whether the relevant applications are made prospectively or after permission has already been granted for part of the larger area.

The claimant challenged an Inspector’s decision on a section 78 appeal concerning four dwellings on the former beer garden of the Kings Head Inn, Norton. Tewkesbury Borough Council had refused permission because no affordable-housing contribution was proposed, treating the beer-garden land and an earlier four-dwelling scheme on the former car park as part of a larger site under Policy HOU13 of the Tewkesbury Borough Local Plan 2011. The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990. It argued that the policy did not permit aggregation, or alternatively permitted it only before any residential permission had been granted on part of the land.

1. The claim was dismissed. Permission to apply for statutory review was granted only in relation to ground 1, which just crossed the threshold of arguability. Permission on ground 2 was refused because that ground was hopeless.
2. The interpretation of a planning policy is a question of law for the court, determined objectively from the language used. Planning policies are not construed as statutes or contracts. The application of policy to facts may involve planning judgment, which can be challenged only on limited public-law grounds, including irrationality, failure to take an obviously relevant consideration into account, or reliance on a legally irrelevant consideration.
3. Applying R (Cherkley Campaign Ltd) v Mole Valley District Council, supporting text is not itself policy and cannot impose an additional policy requirement. It may nevertheless assist interpretation and alter the meaning that policy language would have if read in isolation. The explanatory text accompanying Policy HOU13 therefore remained relevant to the meaning and application of “sites”.
4. The word “sites” was not confined to the application site. Its natural meaning permitted the decision-maker to consider, using planning judgment and the criteria identified in R (Westminster City Council) v First Secretary of State and Brandlord Limited, whether an application site formed part of a larger area with greater housing capacity. Those criteria were not mandatory rules and did not require a particular outcome.
5. The policy and explanatory text applied to both so-called prospective and retrospective aggregation. Restricting aggregation to the former would enable artificial subdivision of land and undermine the policy’s purpose. Viability and uncertainty were matters for the decision-maker’s planning judgment, not reasons to impose the proposed legal restriction.
6. R (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council concerned whether separate permissions could be treated as one under the Community Infrastructure Levy regime. It did not govern the distinct question whether development should be treated as part of a larger site for applying an affordable-housing threshold.

This was a first-instance statutory review of an Inspector’s decision dated 6 July 2016 on a section 78 appeal. The judgment records no prior court decision in the same litigation.