Developer wins High Court challenge after inspector misinterpreted policy in neighbourhood plan

Housebuilder Cora Homes has won on one of four grounds in a planning appeal, with Mr Justice Mould ruling he could not say the decision of the inspector concerned would have been the same without the error made.

The High Court case was taken by Cora Homes against the Secretary of State For Levelling Up, Housing and Communities, whose inspector had dismissed its appeal against West Northamptonshire Council’s refusal of planning consent for up to 45 homes at Flore.

The inspector concluded the proposed development would result in a high level of harm to the character and appearance of the surrounding area and that this outweighed the proposal’s benefits.

He also concluded it would conflict with the development plan taken as a whole and lacked any material considerations to indicate a decision outside that plan.

Cora Homes’ successful challenge was on its Ground 2, that the inspector misinterpreted policy F4 of the neighbourhood plan, was wrong to regard that policy as relevant to the proposed development and that his reasons were inadequate.

Mould J upheld this. He heard from Cora Homes that the policy concerned was relevant only to applications for a small-scale affordable housing development and was not to be interpreted as extending the policy to planning applications for open market housing beyond the Flore settlement boundary, even in cases where a mix of market and affordable housing was proposed.

Cora Homes argued that different policies applied to the market-led housing development it proposed, and the inspector had interpreted the neighbourhood plan as limiting policy support for new homes beyond the defined settlement boundary to small-scale affordable housing schemes of no more than 10 dwellings, regardless of the scale or nature of identified local housing need. It said this was not a tenable interpretation of the neighbourhood plan.

The Secretary of State submitted that the question of law was whether, on its proper construction, policy F4 of the neighbourhood plan was capable of being material to the proposed development.

Policy F4 came in two parts, the first concerned rural exception sites, and the second the appropriate mix between open market and affordable housing in residential development schemes in and around Flore.

Its aim was to ensure these should deliver only affordable housing, unless open market housing met a local need and was demonstrably essential to delivery of affordable housing.

Mould J said Cora Homes’ objection was well-founded as a decision maker must have regard to the provisions of the development plan, and any other material considerations.

He said: “In a case such as the present planning appeal, where the materiality of a particular policy of the development to the determination of the planning application is in dispute between the applicant and the local planning authority, the inspector must resolve that dispute on a proper understanding of that policy, if he or she is to fulfil the duty imposed by section 70(2) of the 1990 Act.”

The judge explained that if policy F4 was understood as limiting the provision of open market housing in any housing development within the neighbourhood to the specific circumstances stated in the second part of the policy, then policy on mix of tenure, type and size which, under policy F3, applies to all proposals for new housing development “is rendered largely, if not wholly, otiose”.

But if policy F4 was read as a self-contained policy applicable only to planning applications for rural exception sites, which reflected the established national policy concept, then “policies F2 and F3 have a clear and distinct purpose in regulating to planning applications for housing development other than for rural exception sites. There is no gap in policy control at the neighbourhood level.”

Mould J said: “I have concluded that the inspector was wrong to regard policy F4 of the neighbourhood plan as relevant to his determination of the planning application for the proposed development on appeal before him.

“The proposed development did not seek to deliver a rural exception site. The proposed development sought to deliver a mix of open market and affordable housing in order to meet an identified need, in response to policy F2 of the neighbourhood plan.”

He said it followed the inspector was wrong to find that the proposed development was in breach of policy F4.

The Secretary of State submitted that Mould J should nevertheless dismiss the claim on the basis that the inspector would have come to the same overall conclusion on the planning appeal even if he had not misinterpreted the policy.

Mould J said: “I am unable to accept that submission.” He said it was clear from the inspector’s reasoning that he gave significant weight to what he saw as the proposed development's conflict with the policy. This meant it could not safely be said that had he correctly approached his decision he would necessarily have reached the same conclusion.

He dismissed three other grounds related to failure to give reasons, unfairness and lack of proper regard to Cora Homes’ evidence on local housing need.

Mark Smulian