Conflicting views have been proffered from time to time as to the extent to which the meaning of a development plan policy (or a national policy) falls to be decided by a planning authority when determining a planning application. Is interpretation a matter of planning judgment, as for instance is the question of how much weight should be attached to the policy, and so susceptible to challenge only on the grounds of irrationality or perversity? Or is the jurisdiction of a planning authority subject to limitations in that respect? What is clear, of course, is that a planning authority must proceed on a proper understanding of the development plan given (a) its statutory duty to have regard to the development plan and (b) the legal status of the development plan.
The Supreme Court in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 has given clear guidance. In that case, the crucial issue was whether the planning authority had misunderstood a relevant development plan policy that applied a sequential test to the positioning of new retail developments. The court held, on the facts, that the planning authority had correctly construed the policy in question and had not proceeded on an erroneous understanding of it. However the following principles can be extracted from the judgment.
(a) The decision to grant planning permission will be open to challenge if the planning authority fails either to have regard to a policy or to interpret it properly. (b) The meaning of a policy is not a matter for the planning authority to determine as it pleases, within the limits of rationality. (c) The court’s role in construing a policy is not confined to cases where the planning authority’s view is considered irrational or perverse. (d) That said, development plan provisions are not to be construed as if they are statutory or contractual provisions. (e) However, the application of a policy to a given set of facts is a matter of planning judgment, subject to challenge only on the grounds of irrationality or perversity.
In the present case, for instance, the meaning of the words “no suitable site” in the context of the relevant policy was not a question that could be answered by the exercise of planning judgment; it was logically a prior question as to the issue to which planning judgment had to be directed.
John Martin is a freelance writer.
