Development plan – Planning policy – Interpretation – Appellant operating port in conservation area – Respondent local authority adopting conservation area management plan (CAMP) – Appellant opposing proposals on future of port – Court dismissing application for judicial review – Whether judge erring in conclusion that CAMP consistent with local plan – Appeal dismissed
Mistley was a small village in Essex, on the south bank of the River Stour, which contained a working port and formed part of a conservation area. The port handled loose materials such as granite, stone and aggregates and was operated by the appellant company. The first respondent local planning authority adopted a conservation area management plan (CAMP) which the appellant said was unlawful in part. The High Court rejected the challenge: [2012] EWHC 1209 (Admin).
The appellant appealed. The second respondent to the appeal was the owner of a disused warehouse on the quayside. The appellant contended that certain sections of the CAMP were inconsistent with the relevant parts of the local plan. The local plan, properly construed in its context, provided that the quayside area was for port related uses and not for mixed use regeneration schemes or for enhanced public access. The local plan policy, properly construed, meant that a change of use of an existing building could not be allowed unless and until all port related uses had been excluded. The CAMP was based on the misconceived premise that the local plan promoted mixed use development on the quayside.
The CAMP promoted redevelopment as a key, capital project of the warehouse which would necessarily be for non-port related use. On the evidence, any re-development for port related use would not be viable. The promotion of redevelopment in the CAMP was therefore necessarily inconsistent with the local plan properly construed. The CAMP approached industrial scale port buildings as if they were harmful to the conservation area and aimed to remove or replace them, when in fact, the local plan recognised that the quayside was, and would remain, first and foremost, an operational port with the character and appearance of an operational port which necessarily meant that there would be major warehouse buildings on it. In support of its argument, the appellant referred to the evolution of the local plan, including the original draft that the independent inspector made following a public inquiry.
Held: The appeal was dismissed.
The kind of forensic archaeology undertaken by the appellant was inappropriate to the interpretation of a document like a local plan or the CAMP. The public nature of those documents was of critical importance as the public was in principle entitled to rely on the public document as it stood, without having to investigate its provenance and evolution. In addition, a development plan was to be interpreted objectively so that the subjective views of the author about what it meant were irrelevant: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
Accordingly, in the present case, the court had not to adopt a strained interpretation of the local plan in order to produce complete harmony between its constituent parts. The court had to be wary of a suggested objective interpretation of one part of the plan as having precedence over another. In a case in which different parts part of the local plan pointed in different directions, it was for the planning authority to decide which policy should be given greater weight in relation to a particular decision.
The written explanation of policy QL6 forming part of the local plan specifically stated that mixed use development would be encouraged over the whole of the urban regeneration areas. The fact that the local plan did not specifically promote the reorganisation of the port or the redevelopment of the warehouse for non port-related purposes did not entail the converse proposition that either of them was prohibited. The local plan was neutral on the question of port reorganisation and specifically envisaged that the warehouse could be redeveloped provided that policy LMM1, aimed at protecting the existing port operations, was complied with.
Having correctly interpreted policy LMM1, the judge went on to reject the argument that the CAMP was inconsistent with that policy and none of the appellant’s arguments had come near to persuading the court that the judge’s analysis was wrong. In all the circumstances, the foundation on which the appellant’s argument was based did not compel an interpretation of the CAMP that differed from that adopted by the judge.
Ian Dove QC (instructed by SJ Berwin LLP) appeared for the appellant; David Altaras (instructed by Holmes & Hill LLP, of Braintree, Essex) appeared for the first respondent; Rhodri Price Lewis QC (instructed by Howes Percival LLP) appeared for the second respondent.
Eileen O’Grady, barrister