Town and country planning – Planning permission – Local plan – Claimant local authority applying to quash decision of defendant secretary of state to allow appeal against refusal of planning permission – Whether inspector misinterpreting local plan policies – Application granted
The claimant was the local planning authority for an administrative area which included the village of Blean. On 20 November 2015, the second defendant applied for planning permission for the erection of up to 85 residential dwellings together with structural planting and landscaping, informal public open space, surface water attenuation and a vehicular access. When the claimant refused planning permission, the second defendant appealed to the first defendant secretary of state. Following a public inquiry an inspector appointed by the first defendant granted conditional planning permission for the development.
The claimant applied under section 288 of the Town and Country Planning Act 1990 for an order quashing that decision on the grounds, amongst other things, that: (i) the inspector misinterpreted policies H1 and H9 of the Local Plan; and (ii) the interpretation which the inspector gave to policy H9 was not only not advanced as legitimate by either party but also in substance wrong. Further, since the inspector had misinterpreted policies from the development plan he had failed to lawfully apply the requirements of the exercise of the discretion in relation to the grant of planning permission in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004.
Held: The application was granted.
(1) The interpretation of the planning policy was a question of law for the court, and it was solely a question of interpretation of the terms of the policy. Questions of the value or weight to be attached to that policy were matters of judgment for the decision-maker. The task of interpretation of the meaning of the planning policy was not to be undertaken as if the planning policy were a statute or a contract. The approach had to recognise that planning policies would contain broad statements of policy which might, superficially, conflict and require to be balanced in ultimately reaching a decision. Planning policies were designed to shape practical decision-taking and had to be interpreted with that practical purpose clearly in mind. It also had to be taken into account in that connection that they had to be applied and understood by planning professionals and the public for whose benefit they existed, and that they were primarily addressed to that audience. For the purposes of interpreting the meaning of the policy, it had to be read in context which would include its subject matter and also the planning objectives which it sought to achieve and serve. The context would also comprise the wider policy framework within which the policy sat and to which it related. That framework would include, for instance, the overarching strategy within which the policy sat. Policies would very often call for the exercise of judgment in considering how they applied in the particular factual circumstances of the decision to be taken. It was of vital importance to distinguish between the interpretation of policy (which required judicial analysis of the meaning of the words comprised in the policy) and the application of the policy (which required an exercise of judgment within the factual context of the decision by the decision-taker): City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71, Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69, Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] EGLR 27, R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EGILR 35, R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878; [2014] PLSCS 198 and Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) applied.
(2) In the present case, the court was satisfied that the inspector was in error when he interpreted policies H1 and H9 as being silent in relation to housing development which was not on previously developed land within urban areas and therefore concluded that there was no conflict with either of those policies in principle. Taking the language of the policy itself, it was clear that the purpose of the policy was to identify, for the purposes of housing development, the types of location where the plan required housing development to take place. If housing development was proposed in a location which did not accord with the types of locations specified in the policy, that proposal would be inconsistent with and unsupported by the policy and therefore not in accordance with it and in conflict with it. There was no justification for concluding that the policy was required to go on to specify that in all other types of location, apart from on allocated sites or previously developed land within urban areas, planning permission for residential development would be resisted, before it was possible to reach the conclusion that a housing proposal in such a location was in conflict with the policy: Crane v Secretary of State for Communities and Local Government [2015] EWHC 425; [2015] PLSCS 61 followed. Gladman Developments Ltd v Daventry District Council [2016] EWCA Civ 1146 followed.
(3) Policy H9 was clear and made plain that it applied in relation to developments “in excess of minor development, on previously developed sites within villages”. There was nothing either in the text of the policy, or in the explanatory text, which justified the inspector’s conclusion that what that language was intended to mean was that the requirements specified in the policy were to be applied to any residential proposal which was either outside of the village, or exceeded minor development, or was not on brownfield land. The inspector appeared to have reached the conclusion that the policy’s requirements applied to proposals in a variety of locations none of which were specified in the text of the policy. His conclusion that the policy was relevant for those reasons was clearly misconceived. The inspector had failed to properly interpret policies H1 and H9 of the development plan leading to a failure to correctly apply section 38(6) of the 2004 Act on the basis that he proceeded on a misunderstanding of the correct meaning of the policies.
Isabella Tafur (instructed by Canterbury City Council) appeared for the claimant; Sarah Sackman (instructed by the Government Legal Department) appeared for the first defendant; John Barrett (instructed by Irwin Mitchell) appeared for the second defendant.
Eileen O’Grady, barrister
