In Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13, the Supreme Court rejected the proposition that the meaning of the development plan was a matter to be determined by the local planning authority, and that the court had no role in judging that meaning unless the authority’s interpretation was perverse or irrational. It went on to rule that planning policy statements, for instance, should be interpreted objectively in accordance with the language used, read, as always, in its proper context. Clearly, any failure by the decision maker to do so will constitute an error of law.
The policy statement in question in Newlyn Deans & Sons Ltd v Secretary of State for Communities and Local Government [2012] EWHC 2909 (Admin); [2012] PLSCS 219 was PPG2: Green Belts, which was cancelled with effect from 27 March 2012 by the National Planning Policy Framework (“NPPF”). This provided for a general presumption against inappropriate development within green belts – inappropriate development by definition being harmful to them – and stated that such development should not be approved except in very special circumstances. (A similar approach was subsequently taken in the NPPF.)
In setting out guidance as to development that would be inappropriate, PPG2 described the construction of buildings in the green belt as such unless they amounted, inter alia, to “essential facilities for outdoor sport and outdoor recreation… and for other uses of land that preserve the openness of the green belt and which do not conflict with the purposes of including land in it”.
The claimant in Newlyn Deans challenged the decision of an inspector to uphold enforcement notices relating to the use of its land for paintballing, and the erection of barriers and obstacles associated with that use. It contended that the inspector had adopted an unlawful interpretation of that specific guidance. More specifically, the claimant argued that outdoor sport and outdoor recreation are deemed to preserve openness, and that only the essential facilities for uses other than outdoor sport and outdoor recreation require an assessment as to whether they preserve openness.
The court rejected this attack upon the inspector’s approach as unsustainable. PPG2 did not say that outdoor sport and outdoor recreation were deemed to preserve openness. Moreover, in the context of green belt planning policy it did not make sense to construe the wording in that way.
John Martin
