When determining a planning application or a planning appeal, the decision maker will inevitably be faced with construing development plan policies. A failure to do this correctly may affect the weight that is attributed to them. It is therefore not unusual to find a disappointed party seeking to challenge the determination on that basis. Stated simply, the attitude of the courts to this issue is as follows. The court retains the ultimate responsibility for construction, but a broader and less technical approach than that required in the case of the construction of primary or subordinate legislation should be adopted.
In Johnson Brothers v Secretary of State for Communities and Local Government [2010] PLSCS 59 the local planning authority had refused to grant planning permission for new storage and distribution units on a partly redeveloped former world war two airfield in an isolated rural location with limited services and facilities and no convenient public transport access. It had deemed the development to be unsuitable. The appellant appealed to the secretary of state.
Local plan policy ECON 1 identified the application site as one to be protected and safeguarded for employment uses. ECON 2 allowed for the expansion of existing rural employment sites, but only if stated criteria were met. A further policy, SR 2, made specific allocations. The inspector concluded that although the development would not conflict with ECON 1, that policy did not favour the proposal. He also concluded that the development did not meet the criteria set out in ECON 2. He dismissed the appeal.
The appellant sought to quash the inspector’s decision in the High Court, contending principally that the inspector had misconstrued the relevant planning policies. More specifically, it argued that ECON 1, to all practical intents and purposes, amounted to an allocation for employment use. Had he construed it correctly, he would have attributed to it greater, if not conclusive, weight. The High Court disagreed and dismissed the appeal. The appellant appealed to the Court of Appeal.
The Court of Appeal also dismissed its appeal, holding that the inspector had taken the correct approach to the planning policies. ECON 1 was protective and did not amount to an allocation of the site for employment uses. To construe the policy as allocating the protected land for employment use would lead to illogicality and to an oversupply of new employment land.
John Martin is a freelance writer
