Harvey, R (On the Application Of) v Mendip District Council

The meaning of a development-plan policy is determined objectively from its language and context. Planning judgment is reserved for the application of genuinely broad or evaluative policy language.

A rural exception policy requiring affordable homes to meet a clearly identified need in the latest settlement-specific housing assessment permits provision up to, but not beyond, the identified number. Its exceptional character and supporting text reinforce that strict limit. A reservation of matters of scale does not reserve the number of dwellings where the applicable definition confines scale to a building’s height, width and length.

Judicial-review relief should not be refused under Senior Courts Act 1981 section 31(2A) unless the statutory high-likelihood test is met. A short, inadvertent delay in serving an appeal notice may be cured where refusal would be unjust and disproportionate.

The Council granted outline planning permission for a rural paddock at North Wootton for up to six affordable homes and one open-market dwelling. The proposal was advanced as a rural exception site. The latest housing needs assessment specific to the village clearly identified a need for five affordable homes.

The Planning Board considered the proposal compliant with Development Policy 12 of the Council’s Local Plan, despite its planning officer’s contrary recommendation. HHJ Jarman QC dismissed the claimant’s judicial-review challenge on 3 November 2016.

The claimant appealed on the sole permitted ground that the Board had misconstrued Development Policy 12. The interested parties also relied on discretionary objections to relief, including section 31(2A), late service of the appellant’s notice, and the claimant’s earlier objection letter.

1. Appeal allowed. The Planning Board had misinterpreted Development Policy 12. It treated the proposed development as compliant with the Local Plan, rather than as a departure justified by material considerations.

2. Applying Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, the court held that the policy’s meaning was an objective legal question. Development Policy 12(1)(a) required affordable homes that met the clearly identified local need in the latest housing needs assessment. The identified need was five homes, so permission for up to six affordable homes exceeded the policy’s limit.

3. The exceptional nature of the policy, read with the Local Plan’s focus on development in towns and specified villages, reinforced that construction. The explanatory text could assist interpretation, consistently with R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567, but could not override the policy. It likewise supported a limit tied to the actual identified need.

4. The reservation of matters of scale did not enable the Council later to prevent a six-home development. Under article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015, scale concerned each building’s height, width and length, not the number of dwellings.

5. Relief was not barred by section 31(2A) of the Senior Courts Act 1981. It was not highly likely that the Board would have granted the permission had it understood that the scheme conflicted with the Local Plan. The Board had identified no material considerations to justify a departure, and the Council provided no evidence that it would have done so.

6. The short delay in serving the appeal notice was inadvertent and caused only modest prejudice. An extension to 5 January 2017 was appropriate under the Civil Procedure Rules 1998. The claimant’s earlier letter did not preclude relief: the Board had been alerted to the substance of the local-need objection and remained obliged to apply the Local Plan lawfully.

• Court of Appeal (Civil Division): Allowed the appeal and rejected the discretionary objections to relief: [2017] EWCA Civ 1784.
• High Court, Cardiff District Registry: HHJ Jarman QC dismissed the judicial-review claim on 3 November 2016.