Village Concerns (R on the application of) v Wealden District Council

Development plan policies must be interpreted purposefully and in context. A policy directed to affordable housing does not regulate the mix of open-market housing merely because its wording refers generally to dwelling size, type and tenure. Where an outline permission grants development “up to” a specified number of dwellings, that number falls within the scope of the permission, but a smaller number may be approved at reserved matters. The local planning authority cannot reject the specified number on the basis that the site is incapable in principle of accommodating it, although it may reject the reserved matters proposal if its detailed design, siting or landscaping fails to provide the best means of delivering that quantum. Committee discussions must be assessed by their general tenor, read against the officers’ report, rather than by isolating extempore remarks.

Wealden District Council granted outline planning permission for up to 205 dwellings at Hesmonds Stud. Village Concerns, a residential association, sought judicial review on two grounds. First, it argued that the development plan required consideration of the mix of open-market dwelling sizes and types. Secondly, it argued that committee members had been misled into believing that a reserved matters application for 205 dwellings could be refused in principle because of environmental constraints.

The central issues were the proper interpretation of the relevant development plan policies and whether the committee had been materially misled about the legal scope of the outline permission.

1. Ground 1 dismissed. Under Town and Country Planning Act 1990, section 70, and Planning and Compulsory Purchase Act 2004, section 38(6), the authority had to have regard to material development plan policies and determine the application in accordance with the plan unless material considerations indicated otherwise.

2. Planning policy is a question of law for the court, but its application and the weight given to it are matters for the decision-maker. Policies must be read with their context, subject matter, objectives and wider policy framework. They are not to be construed as if they were statutes or contracts.

3. The Core Strategy’s provisions on housing type and size concerned the preparation of a future development plan document dealing with housing mix for all tenures. The Affordable Housing Delivery Local Plan, including policy AFH1, was solely concerned with affordable housing. The Core Strategy provisions concerning affordable housing and policy WCS8 had been superseded. There was therefore no development plan policy governing open-market housing mix which the officers had been required to apply.

4. Ground 2 dismissed. An outline permission for “up to” a stated number accepts that the stated quantum is within the scope of the permission, while allowing the reserved matters application to provide for fewer dwellings. The authority cannot refuse the stated number because the site cannot accommodate it in principle. It may, however, refuse the detailed proposal if it does not provide the best means of delivering that number having regard to siting, design, access and landscaping.

5. The officers’ report clearly proceeded on the basis that 205 dwellings could be accommodated. The committee debate, viewed realistically and by its general tenor, did not supersede that advice. The remarks suggesting that fewer units might ultimately be approved were speculative and did not amount to misleading advice. The judicial review claim was dismissed.