Persimmon Homes (North East) Ltd v Newcastle City Council & Ors

Planning policies must be interpreted objectively as a matter of law, although their application to particular facts remains a matter of planning judgment.

A masterplan may satisfy a policy requiring infrastructure to be ensured by linking delivery to later phases and subsequent planning applications. It need not contain an immediately binding agreement between all landowners. Where congestion is a material consideration, it may be addressed through the planned infrastructure solution. National Planning Policy Framework paragraph 32 may then be used to identify when that infrastructure is required, by assessing whether residual cumulative transport impacts are severe.

Three rolled-up judicial review claims challenged: the adoption of the Callerton Master Plan and Design Code; planning permission for up to 600 dwellings at East Middle Callerton; and planning permission for up to 550 dwellings and associated facilities at West Middle Callerton.

The claimant argued that the masterplan failed to ensure delivery of an access road required by Core Strategy policies, and that the Council unlawfully failed to consider the need to reduce congestion on Stamfordham Road. Similar arguments were advanced against the two planning permissions. The court considered whether the Council had properly interpreted and applied the development plan and relevant transport policy.

1. All three claims dismissed. Each ground was arguable, but none was substantively made out and no legal flaw was established.
2. Interpretation of planning policy is a question of law. Applying Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, the court must determine the objective meaning of the policy. Its application to particular facts remains a matter for planning judgment, subject to rationality review.
3. Policies CS3 and NN1 required a comprehensive, phased and coordinated masterplan showing how infrastructure would be delivered. The Masterplan complied with those requirements. Paragraphs 9.12–9.16 linked the access road to the relevant phases and subsequent planning applications. The policy did not require a legally binding scheme agreed immediately between all landowners.
4. Congestion on Stamfordham Road was a material consideration. It was addressed through the provision of the access road, which remained an integral part of the overall development. The Council was entitled to use National Planning Policy Framework paragraph 32 to identify the point in the phased development at which the access road became necessary because of cumulative transport impacts.
5. In determining the two planning applications, the Council considered congestion, junction performance and mitigation. The evidence showed that the two middle Callerton developments could proceed with appropriate junction improvements without the access road being immediately necessary. The access road remained required for the wider Callerton development and its later phase. Applying paragraph 32 did not constitute a failure to consider the material planning objective of reducing congestion.

The court therefore dismissed the three applications for judicial review. It did not determine the respondents’ alternative arguments concerning delay.

The judgment records that permission to apply for judicial review was initially refused on the papers by Kerr J on 18 January 2017. Permission was renewed at a rolled-up hearing before Dove J, who heard both arguability and the substantive merits. The three claims were dismissed.