Butler v Bath And North East Somerset District Council & Ors

Where an examination-in-public panel recommends that local plans identify suitable locations for a particular use, a planning authority cannot satisfy that recommendation merely by requiring local plans to formulate criteria for finding locations. Identifying actual locations and setting selection criteria are distinct planning functions. If the authority adopts a policy with the latter, materially weaker effect, it has indicated an intention not to accept the recommendation. The authority may make that change, but it must first comply with regulation 15(4), including the statutory opportunities for objections and representations. A subjective belief that the recommendation has been followed does not prevent a departure where the recommendation has one clear meaning.

A Romany Gypsy challenged the legality of Policy 37 in the adopted joint replacement structure plan for Bath and North East Somerset, Bristol, North Somerset and South Gloucestershire. The policy required local plans to set policies and criteria for Gypsy and traveller sites. An examination-in-public panel had recommended that suitable locations be identified in local plans.

The Administrative Court, presided over by Mr Rabinder Singh QC, rejected the challenge. It held that the authorities had not intended to depart from the recommendation and therefore had not triggered regulation 15(4) of the Town and Country Planning (Development Plan) (England) Regulations 1999. The central issue on appeal was whether Policy 37 amounted to an intention not to accept the panel's recommendation.

Appeal allowed with costs. Carnwath LJ gave the principal judgment. Waller LJ agreed, and Peter Gibson LJ expressed entire agreement.

1. The statutory question was whether the authorities, by adopting Policy 37, intended not to accept a recommendation contained in the examination-in-public panel's report. Regulation 15(4) required the authorities, in that event, to make the rejected recommendations available for inspection and to give notice inviting objections and representations. The authorities had power to depart from the recommendation, but only after following that procedure.
2. Circular 1/94 drew a clear distinction between identifying actual locations in local plans and setting out criteria for identifying suitable locations. The panel's recommendation had to be understood in that context. Its requirement that suitable locations be identified in local plans called for something more specific than criteria-based policies.
3. Policy 37 did not require local plans to identify locations. It required them to set out policies and indicated criteria to guide the search. That was the clear effect of the wording adopted. The reference to an appropriate level of provision and the treatment of mixed-use sites also weakened the panel's language, although those subsidiary differences would not alone have justified upsetting the policy.
4. The authorities' subjective belief that they had complied with the recommendation could be relevant only if the recommendation admitted a reasonable alternative interpretation. It had one clear meaning. Difficulties arising from different circumstances within the four authority areas might have justified proposing a modification, but could not justify avoiding regulation 15(4). Policy 37 therefore could not stand.

The appeal was allowed with costs.

• Court of Appeal (Civil Division): Allowed the appeal with costs. It held that Policy 37 departed from the examination-in-public panel's recommendation and could not stand.
• Administrative Court, Queen's Bench Division: Rejected the statutory challenge, holding that the authorities had not intended to depart from the recommendation and had not breached regulation 15(4).