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The High Court (Mrs Justice Lieven) has handed down judgment in R (oao Wiltshire Council) v Secretary of State for Housing, Communities and Local Government and Mr W Howse

Mark Westmoreland Smith

The High Court (Mrs Justice Lieven) has handed down judgment in R (oao Wiltshire Council) v Secretary of State for Housing, Communities and Local Government and Mr W Howse [2020] EWHC 954 (Admin). The hearing was one of the first to be held remotely under the COVID-19 protocol.

The judgment is of some importance in that it lays down the proper interpretation of the words “subdivision of an existing residential dwelling” in paragraph 79(d) of the National Planning Policy Framework. 

The Inspector whose decision was challenged applied those words to the subdivision of a residential planning unit where there were two separate buildings in residential use, and it was the second and separate building which was the subject of the application. 

The Secretary of State declined to defend the Inspector’s decision but participated in the hearing in support of the Claimant’s interpretation of paragraph 79(d), namely, that the subdivision must be of one physical residential building and does not apply to the planning unit. 

The Court in agreement with the Secretary of State and Claimant held that the words “sub-division of an existing residential dwelling” tend towards the dwelling being one physical building rather than a wider residential unit encompassing other buildings. If the Secretary of State had intended to encompass sub-division of the residential plot then it would have been more natural to use the words “the residential unit” or “the property”. 

The judge continued: “Most importantly, in my view the context strongly militates towards a narrow interpretation. The sub-paragraphs in para 79 are exceptions to the general policy against creating new residential development in isolated rural locations. It is important to have in mind that the policy reason for not supporting new housing in such locations is that it would be fundamentally unsustainable, being poorly located for local services, and that sustainability lies at the heart of the NPPF. As such, it does in my view follow that the exceptions should be narrowly construed as being in general not supportive of sustainable development. The exceptions are all forms of development which could be said to enhance the countryside, whether by adding housing for rural workers, or reusing redundant buildings. As the letter from GLD dated 15 January 2020 states, para 79(d) makes sense in this context as allowing the sub-division of large properties into flats where that is a good use of the existing dwelling. To allow the sub-division of residential units by allowing separate buildings to become separate dwellings goes well beyond that limited exception.”

Mark Westmoreland Smith acted for the Secretary of State.