When the grant of planning permission is challenged, the court will often have to scrutinise the approach of the decision maker to the relevant development plan policies, and the interpretation of the policy documents. However, the court does not expect the decision maker to apply the detailed scrutiny that is required in the case of a statute or a commercial contract.
In R (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin); [2009] PLSCS 255, the council had, in 1995, granted planning permission to Tarmac to mine sand and gravel on a site of around 106ha until October 2010. That site was situated close to an ancient monument of national importance, comprising three prehistoric henges linked by a causeway.
In 2008, by which time most of the deposits had been extracted and a large part of the site converted to wetland, the council granted Tarmac a further planning permission to extend the workings over adjoining farmland to provide an additional extraction area of around 25ha. That permission was conditional on the land also being returned to wetland. The council took the view that the proposed development was a small-scale extension to an existing site and it was therefore appropriate to grant planning permission even though the area lay outside the preferred areas identified in the minerals local plan
The claimant local resident applied to quash the decision to grant the further planning permission. Grounds of challenge based on the council’s assessment of the effect of the extension on the henges and on failures relating to bird management strategies in respect of the wetland failed. Her principal ground of challenge was that the council had erred in its approach to the minerals local plan in deciding that the extension was small-scale.
The court also dismissed this ground of challenge, holding that the council’s planning committee had been entitled to reach that conclusion. The minerals local plan was a document drafted by the council for the guidance of the planning committee. In construing its provisions, the planning committee was interpreting the council’s own policy. The court would pay considerable deference to the interpretation adopted and would interfere only where that interpretation was perverse.
The judge was at pains to point out that policy documents are drafted, often loosely, by planners for planners without the strict intention of being legally binding documents. It was important for words to be construed in their full context and to recognise that most planning decisions turned on the exercise of planning judgment on a unique set of facts and circumstances.
Finally, he pointed out that the planning officer also had a filtering role and exercised an expert function to ensure that only matters that might realistically bear on the relevant decision were brought to the attention of the planning committee.
The lesson to learn is perhaps that the court will be cautious when asked to declare that a planning committee’s interpretation of its own authority’s planning policy is perverse.
John Martin is a freelance writer
