Town and country planning – Planning permission – Local plan – Respondent local authority applying to quash decision of appellant secretary of state to allow appeal against refusal of planning permission – High court granting application – Appellant developer appealing – Whether inspector misinterpreting local plan policies – Appeal dismissed
The respondent was the local planning authority for an administrative area which included the village of Blean. On 20 November 2015, the appellant 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 respondent refused planning permission, the appellant appealed to the secretary of state. Following a public inquiry, an inspector appointed by the first appellant granted conditional planning permission for the development.
The respondent 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 discretion in relation to the grant of planning permission in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004. The application was granted: [2018] EWHC 1611 (Admin); [2018] PLSCS 115. The appellants appealed.
Held: The appeal was dismissed.
(1) Section 38(6) of the 2004 Act required the determination to be made in accordance with the development plan unless material considerations indicated otherwise. The development plan thus had statutory primacy, and a statutory presumption in its favour, which government policy in the national planning policy framework (NPPF) did not. Under the statutory scheme, the policies of the plan operated to ensure consistency in decision-making. If the section 38(6) duty was to be performed properly, the decision-maker had to identify and understand the relevant policies and establish whether or not the proposal accorded with the plan, read as a whole. A failure to comprehend the relevant policies was liable to be fatal to the decision: 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, Crane v Secretary of State for Communities and Local Government [2015] EWHC 425; [2015] PLSCS 61, Secretary of State for Communities and Local Government v BDW Trading Ltd (T/A David Wilson Homes (Central, Mercia and West Midlands)) [2016] EWCA Civ 493 and Gladman Developments Ltd v Daventry District Council [2016] EWCA Civ 1146 followed.
(2) If the relevant policies of the plan had been properly understood in the making of the decision, the application of those policies was a matter for the decision-maker, whose reasonable exercise of planning judgment on the relevant considerations the court would not disturb. The interpretation of development plan policy, however, was ultimately a matter of law for the court which had to seek to discern from the language used in formulating the plan the sensible meaning of the policies in question, in their full context, and thus their true effect. The context included the objectives to which the policies were directed, other relevant policies in the plan, and the relevant supporting text. The court would always keep in mind that the creation of development plan policy by a local planning authority was not an end in itself, but a means to the end of coherent and reasonably predictable decision-making, in the public interest: Ashburton Trading Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 378, R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567 and Hopkins Homes followed.
(3) Contrary to the inspector’s analysis, there was not only no support for the proposed development, either explicit or implicit, in the saved policies of the adopted local plan, but the policies were not essentially neutral, weighing neither for nor against the development, and the proposal was in conflict with them. In the circumstances, the inspector could not properly have avoided the conclusion that a decision to grant planning permission here would not be a decision in accordance with the plan. It would be a decision incompatible with the plan. The inspector could only have granted planning permission for the proposal if he had first confronted the question whether there were material considerations of sufficient force, including relevant government policy in the NPPF, to outweigh the presumption in favour of the development plan arising from section 38(6). However, instead of applying the statutory presumption in favour of the development plan, as he should have done, he applied only the policy presumption in favour of sustainable development. His decision therefore could not stand. The inspector’s misinterpretation and misapplication of the two policies of the local plan and his consequent failure to perform his duty under section 38(6) were enough, without more, to sustain the respondent’s challenge.
(4) (Sir Terence Etherton, MR) The presence of policy H3 in the original local plan, expressly permitting particular types of development outside policy H1 and policy H9, including the type of development which the appellant wished to carry out, undermined rather than supported the appellant’s case that, even if policy H3 was never there, that type of development would still have been permissible under the local plan. Only those types of development expressly authorised by the various stated policies were permitted under the local plan.
Section 38(6) of the 2004 Act required the determination of planning permission to be made in accordance with the development plan unless material considerations indicated otherwise. Far from the local plan adopting the kind of neutrality for which the appellant contended, it was clearly and unambiguously against permission for the proposed development.
John Barrett (instructed by Addleshaw Goddard LLP) appeared for the appellant; Isabella Tafur (instructed by Canterbury City Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Gladman Developments Ltd v Canterbury City Council
