Property Law uk

Maintained by Gary Webber

Development plans

Interpretation of development plan

Tesco Stores Limited v Dundee City Council
[2012] UKSC 13

Summary

The meaning to be given to the key wording in a development is not a matter that can be left to the judgment of the planning authority. Nor is the interpretation of policy that it sets out primarily a matter for the decision-maker. Plans are to be determined objectively.

Facts

Tesco sought judicial review in the Scottish courts of the decision of Dundee City Council ("DCC") to grant outline planning permission for an Asda retail and food superstore on the outskirts of Dundee. Tesco operated a similar facility around 800m from the proposed Asda site.

DCC decided that although the proposal was contrary to employment and retail policies in the structure and local plan material considerations indicated that permission ought to be granted in any event. One of the relevant policies expressed the usual sequential approach to selecting sites for retail use whereby the retail use should only be permitted in the out-of-centre sites if no suitable site is available in the first instance within and thereafter on the edge of the City Centre or District Centre.

In their application for judicial review Tesco argued that DCC had misunderstood the meaning of the word "suitable" in this policy in that they had interpreted it to mean "suitable for the proposed development" instead of "suitable for meeting identified deficiencies in retail provision in the area." The Lord Ordinary dismissed Tesco’s appeal. His ruling was upheld on appeal to the Second Division. Tesco appealed to the Supreme Court.

Submission

Counsel for Tesco and DCC agreed that the question of what words in a development plan policy are capable of meaning was a matter for the court to determine. If the planning authority attached a meaning to words that they were not capable of meaning then it would make an error of law and fail to understand the policy. This is certainly the conventional understanding of the way that challenges based on a misunderstanding of policy operate.

Decision of Supreme Court

The Supreme Court rejected this approach. Lord Reed said that the development plan was a carefully drafted and considered statement of policy and was intended to inform the public of the approach that planning authorities will follow in determining planning applications. It therefore guides the behaviour of applicants and public bodies. The existence of the development plan is designed to ensure a consistent exercise of discretionary powers. Therefore he held at [18] - [19] that:
    "Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as with others, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."
Lord Reed echoed Davis J’s observations in Cranage Parish Council v First Secretary of State [2004] EWHC 2949 in saying that "…planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."

Lord Hope at [35] expressed the ratio of the case as follows: “The meaning to be given to the crucial phrase is not a matter that can be left to the judgment of the planning authority. Nor is the interpretation of policy which it sets out primarily a matter for the decision-maker.”

In the event the Supreme Court held unanimously that DCC’s interpretation of the word “suitable” had been the correct one and the appeal was refused.

Comment

This case signals a different approach to challenges based on misinterpretation of policy. The upshot is that henceforth such challenges will be about errors of law rather than Wednesbury irrationality.


Correct approach to negative presumptions with conditions

UK Coal Mining Ltd v Secretary of State for Communities and Local Government
[2013] EWHC 2142 (Admin)

Summary

This case considered the correct interpretation of negative presumptions in the context of mineral mining permissions. The Inspector had failed to properly analyse and apply the relevant policy and his decision was quashed.

Facts

An Inspector dismissed an appeal against a local authority’s refusal of planning permission for an open cast mine. The development plan policy of “fundamental importance” set out a presumption against proposals for open cast mining, unless a number of conditions applied including that they could be made environmentally acceptable or provided local or community benefits clearly outweighing the adverse impacts of the proposal. In his Decision Letter the Inspector concluded that where the mineral authority concluded there would be material harm to the environment, the presumption against permission put the onus on the developer to show why the authority’s conclusions were unjustified. The mining company applied for a judicial review of the decision.

Issue

Whether the Inspector had properly construed and applied a policy, which contained a negative presumption subject to various exceptions.

Decision

The High Court granted the application.

It pointed out that following Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, [2012] PTSR. 983 the construction of the relevant policy was a matter for the court.

Here it was necessary to include an assessment as to whether the negative presumption in the policy applies. The Court held that the Inspector had improperly conflated the evidential weight of the benefits of the proposal given by the authority with the existence (or otherwise) of the negative presumption, and in doing so, he had circumvented the need to decide whether the negative presumption arose at all.


Area action plan

Adoption of planning document unlawful due to flawed procedure

R (on the application of Wakil) v Hammersmith and Fulham MBC
[2012] EWHC 1411

Summary

A local planning authority’s adoption of a planning document was procedurally flawed due to an incorrect classification and failure to consider whether it should be subjected to assessments.

Facts

An application for judicial review was brought by traders whose premises were situated adjacent to Shepherd’s Bush Market. The Council adopted a supplementary planning document (SPD) which purported to set out policies for the regeneration of the market area. In particular the SPD envisaged the demolition of the traders’ shops and their replacement with residential development. The claimants argued that the Council’s adoption of the SPD was unlawful for a number of reasons.

Decision

The principal point was that the SPD was in substance a development plan document (DPD) for the purposes of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and the Town and Country Planning (Local Development) (England) Regulations 2004 (the “2004 Regulations”). This was because it met the requirements for being an Area Action Plan (“AAP”) under reg. 6(2)(a) of the 2004 Regulations. It followed that the SPD was required to have been subjected to more rigorous consultation, development and assessment procedures.

Wilkie J, held that the question of whether a document is an AAP is a matter of mixed fact and law. The court is not limited to reviewing a decision of the LPA subject only to Wednesbury unreasonableness (Tesco Stores Limited v Dundee City Council [2012] UKSC 13 applied). The SPD in question satisfied all of the requirements of an AAP. As a matter of law it was therefore a DPD rather than an SPD. The Council had adopted the document without having submitted it to the Secretary of State for independent examination and without having undertaken a sustainability appraisal in respect of it. That was unlawful and accordingly the Council’s decision was quashed.


Core strategy

Blyth Valley Borough Council v Persimmon Homes (North East) Ltd and others
[2008] EWCA Civ 861

Summary

This was an appeal from the High Court against the quashing of the council's affordable housing target in its core strategy. The Court of Appeal upheld the decision below.

Facts

The core strategy had contained an affordable housing target for new housing developments of at least 30 per cent. Shortly before the core strategy was submitted to an inspector for examination, national planning policy statement PPS 3 was issued. This policy stated that targets for affordable housing had to be based upon an assessment of their economic viability. The inspector’s decision that the policy nonetheless complied with PPS 3 was quashed on the basis that the local authority had failed to carry out a proper assessment of the economic viability of its target in accordance with PPS3. The inspector approached the issue of soundness on the basis that a policy was presumed to be sound unless evidence was produced demonstrating the contrary. This is what the policy guidance in PPS 12 had stated at the relevant time.

Decision

The Court of Appeal held that the wording of PPS12 as it then was had misled the inspector. As s20(5) of the Planning and Compulsory Purchase Act 2004 was stated in neutral terms its effect was more properly reflected in the recent version of PPS12. This version had removed the presumption of soundness. Although the Court considered that it was understandable that the inspector had adopted the approach he had it was nonetheless unlawful.

Comment

This decision upholds the High Court decision. However it goes further in that it specifically states that the widely used “presumption of soundness” bears no foundation in statute. Accordingly the Court of Appeal held that it was incorrect to approach the evidence base in that way.


Local plan

Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council
[2005] EWHC 957 (Admin)

This was a challenge under the Town and Country Planning Act 1990 s.287 contending that the terms of a policy within the local plan were not capable of supporting the assertion that the local plan was in general conformity with the structure plan.

The local plan policy contained a proviso making clear the circumstances in which the strategic policy would be given effect. The Court held that the way in which the policy was worded fell within the meaning of general conformity as the word general introduced a degree of flexibility.
    "It is difficult to define the scope of the statutory phrase 'in general conformity' as a matter of universal principle; it is easier to decide whether specific policies come within it. However it seems to me that, judged objectively, the words are wide enough to encompass a reproduction of the structure plan policy in the local plan, subject to a qualification as to justification or timing that nonetheless contemplates that the purpose of the strategic policy may be achieved in the plan period. The way the SBC have worded Policy H2 and its explanatory material does fall within the scope of the phrase. The application on Ground 1 therefore fails."

Statutory challenge

Time period for challenge - start Date

Barker v Hambleton District Council
[2012] EWCA Civ 610

Summary

This case concerns the time limit for a statutory challenge to the adoption of a development plan document. An application has to be made not later than the end of the period of six weeks starting with the relevant date, and not from the following day.

Facts

The local authority had adopted the relevant plan on December 21, 2010. For the purposes of the relevant statutory provision dealing with the time limit (Planning and Compulsory Purchase Act 2004, s.113(4)) the “relevant date” was therefore December 21, 2010.

The local authority's Adoption Statement and Notice of Adoption had accurately specified the date of adoption as December 21, 2010, but had erroneously stated that any application could be made "within six weeks of December 31, 2010". The claim was filed on 1 February 2011 by posting it under the locked door of the court after the court office had closed. At first instance the 1 February had been agreed to be the deadline for filing.

Issues

In the Court of Appeal it was argued that in fact the claim had to be filed no later than 31 January 2012 (per Hinde v Rugby BC [2011] EWHC 3684), where it was held that the time limit began to run on the day the local authority had adopted the plan and not on the day after. This decision had been made in the interim.

The appellant also contended that the court had a duty to read words into s113(4) in order to prevent a breach of his right to a fair trial under art.6 of the Convention. The issue was whether the six weeks time limit included the date of adoption or started from the following day.

Decision

The Court of Appeal dismissed the appeal.

The court considered the difference in wording between that in the Town and Country Planning Act 1990 s287(4) (which related to challenges to local plans) that an application "must be made within six weeks from the relevant date" and that in s113 of the 2004 Act. The former meant that the first day to be counted was the day after the relevant date. However, the wording in s113 of the 2004 Act expressly departed from that model: "starting with" was not the same as "from”. The Court rejected the suggestion that there was any presumption that Parliament, in using different language, had intended it to mean precisely the same as the discarded language.

Therefore, the Claimant’s argument that his application was in time was unsustainable.

Further, the fact that the local authority had misstated the date could not avail the appellant. It could not be said that it was impossible or excessively difficult for the appellant to apply within the statutory time limit. It was a clear and reasonable time limit, and the fact that the local authority had misstated it could not have the effect of rewriting a jurisdictional rule.

After considering the issue of whether there had been “an impairment of the very essence of the right of access to the court” under art.6 and applying the judgement in Majski v Croatia (No 2) [2011] ECHR 16924/08, the Court held that here it could not be said that this had occurred.

The Court also reiterated the principle of the need for finality in planning decisions as they affect the wider public interest and are not merely bilateral decisions. Therefore once the time limits for a challenge had passed, all parties were entitled to proceed on the basis that the decision could no longer be impugned.


Updating of policy

Effect on plans - affordable housing

Persimmon Homes (North East) Ltd v Blyth Valley Borough Council
[2008] EWHC 1258 (Admin)

Summary

This case demonstrates the difficulties in producing a core strategy where there is a continual update of planning policy during its preparation.

Facts

In this case, the affordable housing target in the core strategy was fixed prior to new guidance in PPS 3 requiring viability to be taken into account. As a result viability was not addressed in accordance with that guidance, in particular paragraph 29. The inspector examining the core strategy nonetheless found it sound noting also that each application would in any event have to be determined in the light of viability. The claimants challenged this on the basis that no proper assessment of viability had taken place, and that this was contrary to national guidance.

Decision

The court noted that it was not surprising that the policy guidance had not been taken into account as it had not been published at the time the figures were arrived at. However, it considered that the policy was flawed as it was not consistent with current guidance. The inspector should either have altered the wording of the core strategy to require viability to be taken into account on consideration of each application or have adjourned in order for further information to be obtained in respect of viability.

On the present wording, even though each application would be considered in light of viability the fact remained that the target was there and having regard to the need to determine applications in accordance with the development plan this would create a situation where the target in the development was flawed.

Comment

Although the policy guidance had not been had regard to, the inspector decided that the core strategy was sound in any event. However, the court emphasised the need for the development plan to take into account up to date guidance particularly where it is fundamental to the consideration of the policy.

The new regulations will enable representations to be made in respect of the draft core strategy prior to submission and therefore it will be possible to make alterations before the matter is put before the inspector. However, as noted above, in this case, the inspector considered the policy sound in any event. The court quashed the policy on the basis that the new guidance was fundamental to the formulation of the policy.

Back to top