East Hoathly housing estate judicial review

We represented Village Concerns in its challenge to a scheme of up “up to” 205 dwellings (35% of which were to be affordable) and associated development on former equestrian land. The development was also for the demolition of pre-existing equestrian infrastructure, as well as consent for a change of use at the site.

On 11 June 2021 Wealden District Council granted planning permission for the demolition of an equestrian worker’s dwelling and stables, and a change of use of the land to provide up to 205 C3 dwellings (including 35% affordable provision) in East Hoathly, East Sussex. The application was in outline and granted subject to numerous conditions and the terms of a s. 106 agreement.

The planning officer described the development in a report to the planning committee. The officer came to the view that it met the requirements of the council’s housing delivery policy despite the fact that the position, size and design of the affordable units were not known, details could be finalised through planning conditions and reserved matters applications. At the committee, the officer stated that the number of dwellings “is an up to number … not fixed at 205. The reserved matters will inform that, and it could be fewer units once you take into account the [environmental] constraints” and “205 is unlikely to be achieved.” Village Concerns, a residential group sought to judicially review the decision on two grounds:

• The council failed to have regard to its development plan. On a proper interpretation of its housing policy there was a requirement for a mix of size and type of market homes, which had played no part in the officer’s report and was overlooked in the decision-making process.
• The officer’s remarks to the planning committee in relation to whether the numbers of houses could be reduced to accommodate environmental constraints was misleading. The use of the words “up to” a specified number of dwellings did not permit the local authority to require a lower number of dwellings as part of reserved matters to deal with the site’s constraints.

Permission to proceed with the case was granted on renewal by Lang J.

In the Court’s substantive judgment, Dove J found that the housing policy was only concerned with affordable housing and played no part in regulating the provision of market housing. It followed that there was no development plan policy to be applied in relation to open market housing mix and, as such, that there was no legal error.

Additionally, the judge held that in assessing whether the committee had been misled, it was important not to fixate on the observations of a single contributor to the discussion. There could be no dispute that the officer’s report supported the proposition that there was capacity both in environmental and infrastructural terms to accommodate 205 dwellings. The recommendation which was placed before members for approval was predicated on the ability of the site to accommodate 205 dwellings.

Jenny Wigley KC of Landmark Chambers was instructed.