Dorchester Living Limited v Secretary of State for Levelling Up, Housing and Communities

Where housing requirements arise from more than one adopted development plan document, the National Planning Policy Framework does not invariably require a binary choice between the local housing need figure and adopted strategic policies. If the Framework does not address the precise circumstances, the decision-maker may exercise planning judgment, having regard to the Framework’s context and objectives. An up-to-date requirement imposed on a district to meet unmet housing need from a neighbouring authority may be aggregated with the local housing need figure where that is the sensible planning outcome. Separate monitoring arrangements do not prevent aggregation where the policy obligation applies across the district.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision to grant outline planning permission for up to 230 dwellings at Heyford Park, Cherwell.

The challenge was limited to whether the Inspector had misinterpreted and misapplied paragraphs 67 and 77 of the National Planning Policy Framework when calculating Cherwell’s housing requirement. Cherwell’s housing provision was set out in the 2015 Local Plan and a 2020 Partial Review requiring a further 4,400 dwellings to meet Oxford’s unmet need. The Inspector aggregated the local housing need figure with the Partial Review requirement, found no four- or five-year housing land supply, and applied the tilted balance under paragraph 11(d). The central issue was whether that approach was legally permissible.

1. The claim was dismissed. The Inspector had lawfully treated the Partial Review requirement as part of Cherwell’s housing requirement for the purposes of paragraphs 77 and 11 of the National Planning Policy Framework.

2. The Framework must be read in its proper context and in light of the planning objectives it seeks to achieve. It is not a statute and should not be interpreted as though it were, applying the approach in Tesco Stores v Dundee City Council [2012] PTSR 983 and SSCLG v Hopkins Homes [2017] 1 WLR 1865.

3. Paragraph 77 did not expressly address the unusual situation in which one development plan document was more than five years old while another remained current and imposed an additional housing requirement. In such circumstances, the decision-maker may exercise planning judgment as to how the policy should be applied. The court should not fill gaps in planning policy, but should respect the decision-maker’s planning judgment, as explained in R (on the application of Tewkesbury BC) v Secretary of State for Communities, Housing and Local Government [2022] PTSR 340.

4. The development plan as a whole imposed two elements of housing provision on Cherwell: provision for Cherwell’s own needs and provision for Oxford’s unmet needs within Cherwell. Although the latter addressed Oxford’s needs, the obligation to deliver the housing fell on Cherwell. There was no sensible planning reason to exclude that requirement from the calculation under paragraph 77, particularly when delivery against it was effectively absent.

5. The reference in paragraph 77 to the adopted strategic policies or local housing need did not compel a binary choice in these circumstances. It was permissible to use the local housing need figure for the out-of-date plan, the adopted policy figure for the up-to-date Partial Review, and aggregate them. Paragraph 67 strongly supported that conclusion by contemplating a whole-area housing requirement which may include provision for neighbouring areas.

6. Separate monitoring under the Partial Review did not alter the result. The requirement was not geographically limited to allocated sites, and failure to meet it was properly relevant to the district-wide housing land supply and the operation of paragraph 11(d).