Johnson Brothers (A Firm) v Secretary of State for Communities & Local Government

At the permission stage, a planning-policy challenge is properly arguable where the decision-maker may have adopted a meaning that the policy is not reasonably capable of bearing and the proposed ground has a realistic prospect of success. A policy protecting existing employment land may arguably support employment use on undeveloped land, even if it does not itself allocate land for new development. The judgment expressed the view that R v Derbyshire CC ex parte Woods [1997] JPL 958 remains good law on interpreting planning policies. Permission was granted on the policy ground but not on an unpressed procedural ground.

This was a renewed application for permission to appeal from a judgment of His Honour Judge Farmer QC, sitting as a deputy High Court judge. The underlying challenge under section 288 of the Town and Country Planning Act 1990 concerned an inspector’s dismissal of an appeal against refusal of outline planning permission for B8, B2 and B1 uses on part of a former airfield. The local plan designated the site under ECON1, entitled Protection of Existing Employment Land. The inspector treated ECON1 as a protective designation against non-employment change of use, rather than an allocation supporting new employment development. The central issue was whether that interpretation was legally sustainable.

Permission had previously been refused on the papers by Elias LJ.

Application granted in part. Lord Justice Keene granted permission to appeal on the interpretation of planning policy, but not on the separate procedural complaint concerning the conduct of the inspector’s inquiry.

1. Arguable policy ground. The inspector had treated ECON1 as preventing a change from employment to non-employment use, while finding that the proposed development did not itself conflict with the policy. The court considered it properly arguable that this interpretation gave the policy a meaning which it was not reasonably capable of bearing.
2. Protective employment policy. A policy protecting land from non-employment use may imply that the land is intended to be retained for employment use. That may provide some support for a proposal to use undeveloped parts of the land for employment purposes. The court did not finally determine the correct construction of ECON1; it held only that the point had a realistic prospect of success.
3. Interpretive authority. The applicant argued that Raissi [2008] EWCA Civ 72 and other decisions had modified the approach stated in R v Derbyshire CC ex parte Woods [1997] JPL 958. Lord Justice Keene expressed the view that, in relation to planning policies, Woods remained good law.
4. Order. Permission was granted on the policy point. The procedural ground was not pursued. The appeal was directed to be heard by a constitution which included planning experience if practicable.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was granted in part on the planning-policy interpretation ground. [2009] EWCA Civ 1004
2. High Court of Justice, Queen’s Bench Division, Administrative Court: The application arose from a judgment of His Honour Judge Farmer QC, sitting as a deputy High Court judge, concerning a challenge under section 288 of the Town and Country Planning Act 1990.
3. Permission on paper: Elias LJ had refused permission to appeal on the papers. The application was renewed before the Court of Appeal.