Dorchester Living Ltd v Secretary of State for Levelling Up, Housing and Communities & Ors

In assessing whether a planning policy requiring a layout that maximises the potential for walkable neighbourhoods has been complied with, the decision-maker must make an evaluative planning judgment on the neighbourhood’s overall walking potential. The policy does not necessarily require every potentially preferable pedestrian link to be pursued and disproved as unrealistically deliverable. A planning condition requiring a scheme of access to the boundary of a development site, to facilitate onward access, does not ordinarily require the developer to secure or deliver a through-route across third-party land without clear words. Planning reasons are adequate where they make the decision-maker’s conclusion and essential reasoning clear. Harm arising from development outside an identified sustainable location may be treated as non-compliance with the policy governing sustainable locations, rather than as a separate harm concerning the geographical distribution of housing within the district.

Richborough Estates Ltd appealed against Cherwell District Council’s refusal of outline planning permission for up to 230 dwellings at Heyford Park. The Secretary of State’s appointed inspector allowed the appeal on 5 March 2024.

Dorchester Living Ltd sought permission for statutory review of the inspector’s decision. Three additional grounds concerned: the interpretation and application of Policy PV5 of the Cherwell Local Plan 2015, particularly an east-west pedestrian link; the meaning and relevance of a planning condition imposed on the adjoining Pye development; and the inspector’s treatment of Policies BSC1 and ESD1 concerning the spatial distribution of development and identified sustainable locations for growth.

The issue was whether any of those grounds were arguable with a realistic prospect of success.

1. The renewed application was dismissed. Permission for statutory review on all three additional grounds was refused. The judge agreed with the views expressed by Mould J when permission had previously been refused on the papers.
2. Policy PV5’s requirement for a layout that maximises the potential for walkable neighbourhoods did not impose the claimant’s proposed legal test. It did not require the developer to pursue every alternative pedestrian link that might offer some improvement and to disprove its realistic deliverability. The policy required an evaluative assessment of whether the potential for a walkable neighbourhood had been maximised.
3. The inspector had asked the correct question: whether the east-west link to Larsen Road was necessary to maximise that potential. She considered the range of facilities within walking distance, public transport, the other proposed links, and the practical effects of the suggested route. Her findings that the route would produce only marginally shorter distances and might be desirable, but was not critical, were capable of supporting the conclusion that it was unnecessary. Her treatment of connectivity and accessibility was consistent with reading Policy PV5 as a whole.
4. The inspector’s reasons were legally adequate. They clearly identified the issue, the relevant policy, the evidence, and why it was not reasonable or necessary to expect the developer to provide a route crossing another development and third-party land.
5. The Pye planning condition required a proposed pedestrian and cycle access scheme to the western edge of the Pye application site boundary, to facilitate access to Larsen Road. It did not require the developer to negotiate with third-party landowners or deliver a completed through-route to Larsen Road. Clear language would have been expected if that outcome were required. In any event, the condition’s interpretation did not materially affect the inspector’s reasoning.
6. Policy BSC1 concerned the distribution of housing between Banbury, Bicester and the remainder of the district. The inspector’s reference to development away from identified sustainable locations concerned the distinct issue addressed by Policy ESD1. That harm was subsequently treated as failure to comply with ESD1 and the development plan as a whole, and was weighed against the development’s benefits. No arguable legal inadequacy or public law unreasonableness arose.

This was a first-instance application for permission for statutory review of an inspector’s planning appeal decision. Permission on the three additional grounds had previously been refused on the papers by Mould J. Fordham J dismissed the renewed application.