Planning policy – Interpretation – Respondent council granting planning permission for food superstore in out-of-town location – Whether grant of permission vitiated by misunderstanding of development plan policy on positioning of new retail developments – Correct approach to interpretation of planning policy – Whether interpretation of policy a matter for planning authority challengeable only on grounds of irrationality or perversity – Appeal dismissed
In 2009, the respondent council granted planning permission to the interveners for a food superstore, café and petrol station on a derelict former factory site by the A90 into Dundee. The respondents took the view that, although the proposal was not in accordance with the development plan, the grant of permission was none the less justified by other material considerations. The appellant brought proceedings to challenge the grant of permission. It contended that the respondents had misunderstood a relevant development plan policy that applied a sequential test to the positioning of new retail developments, under which permission should not be granted for an out-of-centre site unless no “suitable” site was available within the city, town or district centre or on its edge.
The appellant submitted that the respondents had erred by assessing the suitability of sites for the particular development proposed by the interveners, whereas, on a proper interpretation of the development plan, what had to be considered was suitability for meeting identified deficiencies in retail provision in the area. It argued that, as a result of their error, the respondents had failed correctly to identify the extent of the proposal’s non-conformity with the development plan. The respondents contended that the meaning of the development plan was a matter for the planning authority and that the court should not interfere unless the planning authority’s view on the matter was perverse or irrational.
In the courts below, the respondents’ submissions were accepted and the appellant’s claim was dismissed: see [2010] CSOH 128 and [2011] CSIH 9. It appealed to the Supreme Court.
Held: The appeal was dismissed.
A planning authority had to proceed on a proper understanding of the development plan. The need for such an understanding followed from the statutory requirement for the authority to have regard to the provisions of the plan, which it could not do if it failed to understand them, and from the legal status given to development plans under the relevant planning legislation. The meaning of the plan was not a matter that each planning authority was entitled to determine from time to time as it pleased, within the limits of rationality. The court’s role in determining the meaning of the plan was not confined to cases where the view taken by the planning authority could be characterised as perverse or irrational. That approach would deprive the statutory provisions of much of their effect and drain much of the meaning and purpose from the requirement for a “proper interpretation” of the plan. It would also make little practical sense. The development plan was a carefully drafted and considered statement of policy, published in order to inform the public of the approach that would be followed by planning authorities in decision-making unless there was good reason to depart from it, and designed to secure consistency and direction in the exercise of discretionary powers: R (on the application of Raissi) v Secretary of State for the Home Department [2008] QB 836 applied.
That did not mean that development plans should be construed as if they were statutory or contractual provisions. They were full of broad statements of policy, many of which might be mutually irreconcilable, so that in a particular case one had to give way to another. Further, many of their provisions would be framed in language whose application to a given set of facts required the exercise of judgment. Such matters fell within the jurisdiction of planning authorities, and their exercise of judgment on such matters could only be challenged on the ground that it was irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 PLR 72 applied. Nevertheless, planning authorities could not make the development plan mean whatever they wanted it to mean.
In the instant case, the question of whether the word “suitable” in the development plan policy meant “suitable for the development proposed by the applicant” or “suitable for meeting identified deficiencies in retail provision in the area” could not be answered by the exercise of planning judgment but was a logically prior question as to the issue to which planning judgment should be directed: R v Derbyshire County Council, ex parte Woods [1997] JPL 958; [1997] PLSCS 27 and City of Edinburgh Council v Scottish Ministers 2001 SC 957 considered. However, the respondents had correctly construed the relevant policy and had not proceeded on an erroneous understanding of it. In accepting the interveners’ assessment of which sites could accommodate their proposed use, where that assessment had been made with the degree of flexibility and realism advocated by national planning guidance, the respondents had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.
Martin Kingston QC and Jane Munro (instructed by Semple Fraser LLP) appeared for the appellant; Douglas Armstrong QC and James Findlay QC (instructed by Gillespie Macandrew LLP) appeared for the respondents; Malcolm Thomson QC and Kenny McBrearty (instructed by Brodies LLP) appeared for the interveners.
Sally Dobson, barrister
