Rectory Homes Ltd v Secretary of State for Housing Communities And Local Government

Development plan policies must be read objectively from their language and context. Unless a policy expressly relies on the Use Classes Order, “dwelling” is not confined to Class C3. A unit providing facilities for private domestic existence may be a dwelling within a Class C2 extra-care scheme where care is provided to residents in need of care. The affordable-housing threshold therefore applied. Generic viability testing, or a different inspector’s approach, could not alter the policy’s meaning. Unchallenged factual findings were sufficient, and immaterial ancillary-use reasoning did not vitiate the decision. The statutory challenge was dismissed.

Rectory Homes Limited sought statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s dismissal of its appeal against refusal of permission for a 78-unit extra-care housing scheme in Thame. The parties agreed that the overall scheme fell within Class C2 of the Town and Country Planning (Use Classes) Order 1987. The Inspector treated the accommodation units as dwellings and held that Policy CSH3 required affordable housing. The central issues were the meaning of dwelling in that policy, the interaction between Classes C2 and C3, the relevance of viability testing and a different inspector’s decision, the treatment of a section 106 contribution, and the planning balance.

1. Disposition. The application for statutory review was dismissed. All five grounds of challenge failed.
2. Policy interpretation. Development plan policies are interpreted objectively by their language in proper context, including the plan as a whole. They are practical planning instruments rather than statutory or contractual provisions. The court applied the principles in Tesco Stores Limited v Dundee City Council [2012] PTSR 983, R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452, Canterbury City Council v Secretary of State for Communities and Local Government [2019] PTSR 81 and Monkhill Ltd v Secretary of State for Housing, Communities and Local Government [2020] PTSR 416. The Use Classes Order is relevant only where the policy expressly relies upon it or its context plainly makes it relevant.
3. Meaning of dwelling. Policy CSH3 did not use dwelling as a term confined to Class C3. In planning law, a dwelling is residential accommodation with facilities for day-to-day private domestic existence. That meaning can include extra-care accommodation allowing independent living while providing care. The Inspector’s unchallenged findings that each unit had kitchens, washing facilities, bedrooms and living areas were sufficient to engage the affordable-housing policy.
4. C2 accommodation. The Town and Country Planning (Use Classes) Order 1987 does not prevent a Class C2 scheme from containing dwellings in form. Class C2 may include flats or bungalows where care is provided to occupants in need of care. The Inspector’s additional reasoning that the units were ancillary to the overall C2 use was unnecessary, but any error there was immaterial because the findings at DL 15–16 independently supported the conclusion.
5. Viability and Shiplake. The absence of generic viability testing for extra-care housing during plan preparation did not define the scope of Policy CSH3. Viability could be considered on a case-by-case basis. The Inspector was not required to address every legal view expressed in the Shiplake decision, particularly where the relevant issues were questions of law and the parties had provided no submissions on that decision.
6. Contribution and planning balance. Challenges to the application of regulation 122 of the CIL Regulations are confined to public-law grounds; the court cannot substitute its own planning judgment. The Inspector was entitled to give no weight to a contribution which merely replaced affordable housing associated with the fallback scheme, and had lawfully given substantial weight to the failure to provide the full policy requirement. He was also entitled to identify limited additional harm from the greater activity associated with the larger scheme, despite treating the additional dwellings as a benefit.