Town and country planning – National Planning Policy Framework – Presumption – First respondent local authority granting planning permission for mixed-use development – Adjacent site owner applying for judicial review of decision to grant permission – High Court dismissing application – Appellant appealing – Whether first respondent misinterpreting and misapplying government policy for retail development in para 90 of National Planning Policy Framework – Appeal dismissed
The second respondent applied for planning permission for the construction of an out-of-town mixed-use retail-led development on a 5.9ha site at the former Benyon Centre, Middleton Ring road, Leeds (the site).
The appellant owned and operated a large retail store adjacent to the site. The Middleton District Centre, as defined in the unitary development plan, lay to the west of the appellant’s store and both the Asda store and the site of the proposed development lay outside that centre, within the edge of centre, as defined in the National Planning Policy Framework (NPPF).
Paragraph 89 of the NPPF stated that when assessing applications for retail and leisure development outside town centres, which were not in accordance with an up-to-date plan, local planning authorities should require an impact assessment if the development was over a proportionate, locally set floorspace threshold. That should include assessment of the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and the wider retail catchment. Paragraph 90 stated that where an application was likely to have a significant adverse impact on town centre vitality and viability, it should be refused.
The appellant applied for judicial review of the decision to grant permission contending, amongst other things, that the defendant had misapplied para 90. The judge rejected the appellant’s argument that para 90 created a presumption against development that would have a significant adverse effect on the vitality and viability of a town centre. The NPPF had to be read as a whole and para 90 did not use the word “presumption” and made no attempt to tell decision-makers that they should put more weight on one factor than another: [2019] EWHC 3578 (Admin); [2020] PLSCS 2. The appellant appealed.
Held: The appeal was dismissed.
(1) National planning policy was not the work of those who drafted statutes or contracts, and did not always attain perfection. The language used was usually less precise, and interpretation relied less on linguistic rigour. When called upon to interpret a policy of the NPPF, the court should seek to draw from the words used the true, practical meaning and effect of the policy in its context and look for a straightforward interpretation, without undue or elaborate exposition. Often it would be entitled to say that the policy simply meant what it said, and that it was the job of the decision-maker to apply it with realism and good sense. Paragraph 90 was a good example of that. Its language was simple: it said that planning permission “should be refused” in the circumstances which it contemplated. Those words had a clear meaning which required no elaboration by the court. They did not mean “must be refused” and did not dictate a refusal of planning permission whenever the development proposed was likely to have a significant adverse impact on the vitality or viability of a town centre: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 and R (on the application of Corbett) v Cornwall Council [2020] EWCA Civ 508 [2020] PLSCS 64 considered.
(2) Implicit in a policy such as para 90 was the need for planning judgment to be exercised in its application. As a material consideration under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, it had to be given such weight as the decision-maker judged to be right in accordance with the development plan, as section 38(6) required, unless other material considerations indicated otherwise. If the decision-maker ignored the government’s policy in para 90, it would fail to have regard to a material consideration. The decision-maker had to be aware of the policy and, if approving a development likely to have a significant adverse impact on the vitality and viability of a town centre, it had to be conscious of the fact that it was making a decision contrary to the proposition, in government policy, that permission for such development should be refused.
(3) The policy in para 90 did not have some special status enabling it to prevail over any other policy in the NPPF or trump any other material considerations. A significant adverse impact was not a uniform concept. The strength of countervailing factors sufficient to overcome the proposition or presumption in the policy would also vary. The policy presumption would be overcome only if the likely significant adverse impact on the vitality and viability of the town centre was judged acceptable when all material considerations were weighed by the decision-maker in performing the statutory obligation in section 38(6) of the 2004 Act. However, the weight to be given to those considerations was for the decision-maker, subject only to the court’s supervision on public law grounds.
(4) In the present case, it was plain that the planning committee made its decision conscious of the terms of para 90 and aware that the decision was contrary to national planning policy in that paragraph. That conflict with the para 90 policy was at the heart of the committee’s discussion of the planning merits. It was of no real consequence that the officer’s reports, and the minutes, did not refer to para 90 as containing a presumption. It was clear that the officers did not consider that conflict with national and development plan policy was outweighed by other factors. The committee exercised its planning judgment lawfully.
In making its decision to grant planning permission, the first respondent did not misinterpret or misapply the policy in para 90. The members proceeded on a correct understanding of that policy, but differed from the officer, as they were entitled to do, in the lawful exercise of their own planning judgment: R (on the application of Zurich Assurance Ltd v North Lincolnshire Council [2012] EWHC 3708 (Admin) considered.
Paul Tucker QC and Sarah Reid (instructed by Addleshaw Goddard LLP) appeared for the appellant; Stephanie Hall (instructed by Leeds City Council Legal Services) appeared for the first respondent; Rupert Warren QC (instructed by Birketts LLP) appeared for the second respondent.
Eileen O’Grady, barrister
