Affordable homes consent judged contrary to policy

A Somerset council's decision to grant permission for up to six affordable homes has been quashed following a judicial review claim brought by a neighbouring resident.

The council’s planning policy on rural exception sites stated that there must be a clearly defined need for the development that could not be met in any other way. The most recent housing need assessment for the village, compiled in 2013, identified a requirement for five affordable dwellings.

The council’s housing officer objected to the proposal on the grounds that only one family in housing need had a local connection to the village and their needs were being met in another way. But the council’s planning board granted permission, finding that the scheme accorded with the development plan.

The claimant asserted that the council should have held that the scheme did not comply with the rural exceptions policy. The developers responded that permission would have been forthcoming even if the policy had been correctly interpreted and that the objector had not raised this point when objecting to the application. Their claim was upheld in the High Court, which found that the authority had been entitled to use its planning judgement in deciding that the proposal for up to six dwellings met the identified need.

In the Court of Appeal, Lord Justice Sales rejected the council’s and the developer’s assertion that the assessment’s five-dwelling figure was an approximation. An objective interpretation of the policy, he found, suggested that planning permission would only be granted for up to five affordable houses. He found that the policy applied to exceptional development that would otherwise not be permitted and, if it was not read strictly in accordance with its language, this would tend to allow primary policies in the local plan to be undermined to an inappropriate degree.

In quashing the decision, the court reasoned that the word "meet" bore its ordinary meaning of "meeting but not exceeding" the specific quantum of need identified under the policy. It was not to be interpreted as incorporating an element of flexibility so as to mean "more or less meeting" or "not exceeding to an unreasonable degree", it held.

R (Harvey) v Mendip District Council

Date: 7 November 2017

Ref: [2017] EWCA Civ 1784

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