Development plan planning policies to be interpreted by courts to ensure consistency but with flexibility

Policies in [the development plan] are to secure consistency and direction in the exercise of discretionary powers, while, at the same time, allowing a measure of flexibility.

As such the meaning of the plan is not a matter which each planning authority may decide as it pleases from time to time, so long only as it acts rationally.

Quite the contrary, policy statements should be interpreted objectively per the language used, and always read in their proper context.

In some cases, the words in a policy may “speak for themselves”. In such cases how they apply to particular factual situations will usually be a matter of judgment for the planning authority and only liable to review on the usual narrow public law grounds e.g. irrationality.

Section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”) provides that, where a local planning authority refuses an application for planning permission, the applicant may appeal to the Secretary of State.

Section 288 provides that, if any person is aggrieved by a decision made under section 78 on the grounds that it was not within the powers conferred by the 1990 Act, or that any relevant requirements were not complied with, they may make an application to the High Court.

The Court of Appeal case of Ashburton Trading Ltd v Secretary of State for Communities And Local Government & Anor [2014] was an appeal from the High Court which had allowed the appeal of the London Borough of Islington (“the Council”) under section 288 of the 1990 Act and quashed the decision of the Secretary of State, on the recommendation of the planning inspector, to grant Ashburton Trading Limited (“Ashburton”) planning permission to construct a 25 storey building on land at 45 Hornsey Road, Islington, London N7. Ashburton is a trading division of Arsenal football club.

The court said the starting point was the correct interpretation of the Council’s development policy CS9(E).

“…..Tall buildings (above 30m high) are generally inappropriate to Islington’s predominantly medium to low level character, therefore proposals for new tall buildings will not be supported. Parts of the Bunhill and Clerkenwell key area may contain some sites that could be suitable for tall buildings, this will be explored in more detail as part of the Bunhill and Clerkenwell Area Action Plan.”

That was a question of law for the court: (Tesco Stores Limited v Dundee City Council [2012] – Lord Reed). Policy statements are not to be interpreted as if they are statutory or contractual provisions.

This was not a case where the planning policy spoke for itself. There was no room for the exercise of planning judgment in determining the meaning of CS9(E).

The planning inspector’s exercise of assessing the character of the area had been unnecessary as they had duplicated that already undertaken through the CS process. The meaning of “generally” in CS9(E) was a hard-edged question of construction for the court to determine.

Policy CS9(E) did not say that tall buildings were inappropriate throughout the borough. The last sentence made that clear. It said tall buildings were generally inappropriate. By making express reference to the possibility of exceptions in the Bunhill and Clerkenwell area, CS9(E) it made it clear that, save in that area, the general rule is to be applied and tall buildings will not be supported except in that area.

But even if “generally” was surplusage, that may not point to one interpretation rather than another. The policy should not be construed with the rigour that is applied to the interpretation of statutes which have been drafted by Parliamentary draftsmen and contracts which have been drafted by lawyers.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.