Lord Reed stated as follows in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13: “Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another.” Now, in R (on the application of May) v Rother District Council [2015] EWCA Civ 610, the Court of Appeal has issued a reminder that a similar approach should be taken in construing the provisions of the NPPF.
In May, the appellant lived next to a multi-use games area (“MUGA”) that for most of the period of its operation was subject to a planning condition limiting its hours of operation. (The MUGA comprised a hard-surfaced, fenced games court, next to which there was a “youth shelter” as well as basketball hoops and goal posts.)
The local planning authority (“LPA”) later decided to lift the condition. The appellant applied unsuccessfully to quash that decision, and subsequently appealed to the Court of Appeal. The sole ground of challenge at the appeal stage was that the LPA had failed to have regard to a material consideration, namely parts of paragraph 123 of the NPPF dealing with noise caused by a new development.
Paragraph 123 was not referred to in the officer’s report, nor in the LPA’s reasons for its decision. However, both referred to policy GD1(ii) of the local plan, which also dealt with noise. The principal issue on the appeal was whether there was any difference of substance – as opposed to semantics – between paragraph 123 and policy GD1(ii). The former required that decisions should aim to avoid noise giving rise to adverse impacts on health and quality of life. The latter stated that any development should be in keeping with, and not unreasonably harm, the amenities of adjoining properties.
The court, while recognising the textual differences between the two, agreed with the judge at first instance that those differences were no more than semantic ones. It was also important to remember that the NPPF was intended to be read as a whole. (See paragraph 6.) While it contained policies intended to contribute to and enhance the natural and local environment, it equally contained policies promoting positive planning for sports venues and access to high quality opportunities for sport.
John Martin is a planning law consultant
