Butler, R (on the application of) v Bath and North East Somerset District Council & Ors

A planning authority’s interpretation of an examination panel’s recommendation is lawful where the interpretation is reasonably open to it, having regard to the recommendation’s context and purpose. A recommendation concerning planning policy should not be construed with excessive legalism. Where a procedural defect affects one policy, the court may sever that policy from the wider plan. The statutory power to quash is discretionary, and the court should retain a sense of proportion when considering the consequences of quashing an entire plan. Where a procedural breach has caused substantial prejudice, the affected policy will normally be quashed.

The claimant sought under section 287 of the Town and Country Planning Act 1990 to quash a joint replacement structure plan adopted by four local authorities. She alleged that the authorities had failed to comply with regulation 15(4) of the Town and Country Planning (Development Plan) (England) Regulations 1999 when they adopted Policy 37 concerning gypsy and traveller sites without following the procedure for departing from the examination panel’s recommendation R21.

The central issues were whether the authorities had misinterpreted R21, whether any procedural breach would require the whole structure plan to be quashed, and whether Policy 37 alone should be quashed.

1. Application refused. The authorities had not breached regulation 15(4) of the Town and Country Planning (Development Plan) (England) Regulations 1999.
2. The court accepted that the meaning of R21 had to be assessed in context. The proper approach was not to construe a planning recommendation as though it were a statute. Applying R v Derbyshire County Council, ex parte Woods [1997] JPL 998, the relevant question was whether the authorities’ interpretation was reasonably open to them. Their interpretation was lawful unless irrational.
3. R21 did not require rigid site-specific allocations in every local plan. It permitted the use of site-specific allocations, criteria-based policies, or both, depending on local circumstances. That reading was consistent with the material national policy in Circular 1/94. The four authority areas had materially different needs and practical constraints.
4. Even if regulation 15(4) had been breached, the whole structure plan would not have been quashed. Section 287(2)(b) of the Town and Country Planning Act 1990 conferred a discretion to quash wholly or partly. Policy 37 was substantially severable from the remainder of the plan, applying the approach in R v Director of Public Prosecutions, ex parte Hutchinson [1990] 2 AC 783.
5. If a breach had been established, Policy 37 itself would have been quashed because the claimant would have suffered substantial prejudice. The court would ordinarily quash the affected policy in those circumstances, while retaining discretion in an appropriate case.
6. Arguments under the Race Relations Act 1976 and Human Rights Act 1998 were not determined because they had not been fully argued and were unnecessary to the result. Permission to appeal was refused. There was no order as to costs, subject to public funding assessment.

The judgment was a first-instance decision in the Administrative Court. Permission to appeal was refused.