Dacorum Borough Council, R (on the application of) v The First Secretary of State for Communities and Local Government & Ors

The adopted Local Plan is the starting point for interpreting a planning policy. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, it governs unless material considerations indicate otherwise. National guidance such as PPG2 is a material consideration, but has no statutory force and cannot override clear wording in the plan. It may assist where the plan is genuinely uncertain.

Where a policy measures extensions against the original dwelling, the baseline is the dwelling existing on 1 July 1948, or the first dwelling built thereafter as first built. That baseline remains applicable even after replacement. An inspector who ignores explanatory text and adopts a construction the policy cannot bear commits an error of law.

The appellants owned a dwelling in the Metropolitan Green Belt. A conservatory had been built without planning permission, and a retrospective application was refused. After an enforcement notice was served under the Town and Country Planning Act 1990, a second planning inspector allowed an appeal on ground (a), granted permission for the conservatory and modified the notice.

Dacorum Borough Council challenged that decision in the Administrative Court. The Secretary of State consented to judgment, but the owners resisted. Cranston J quashed the inspector’s decision, holding that the inspector had failed to consider the explanatory text to Local Plan policy 22 and had misinterpreted the relevant national guidance. The central issue in the Court of Appeal was whether original dwelling meant the replacement dwelling or the earlier dwelling, and whether PPG2 controlled interpretation of the adopted Local Plan.

Appeal dismissed. Sir David Keene gave the leading judgment. Lord Justice Lloyd and Lord Justice Rix agreed. The decision was unanimous.

1. The statutory development plan was the starting point. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the planning determination had to accord with the adopted Local Plan unless material considerations indicated otherwise. Policy 22 required the resulting building, including earlier extensions, alterations or replacement, to be less than 130% of the floor area of the original dwelling.
2. The Local Plan clearly defined the original dwelling as the dwelling existing on 1 July 1948, or, where none existed then, the first dwelling built after that date as first built. The comparison therefore remained with the earlier dwelling even if it had subsequently been replaced. The policy’s explanatory paragraphs made clear that the original dwelling might not be the current dwelling.
3. PPG2 was national guidance. It had no statutory force, although it was a material consideration. It could not override clear language in an adopted Local Plan, which had statutory force and had undergone the statutory plan-making process. It could assist where the Local Plan’s wording was uncertain. Lord Justice Rix emphasised that this was the position illustrated by R (Heath & Hampstead Society) v Camden London Borough Council [2008] 2 P&CR 13, but the wording of policy 22 was clear.
4. Brentwood Borough Council v Secretary of State for the Environment, Transport and the Regions and Churley (CO/1220/99) concerned different Local Plan wording and had not decided the meaning of original building in PPG2. The relevant comment in Ascot Wood Ltd v Secretary of State for the Environment and Runnymede Borough Council [2000] JPL 844 was passing; any proposition that an adopted Local Plan could not depart from PPG2 would be wrong in law.
5. The inspector had wrongly assumed that policy 22 and PPG2 used original dwelling in the same sense, had failed to take the explanatory text into account, and had adopted an interpretation that policy 22 could not bear. Cranston J was therefore right to quash the decision. It was unnecessary to determine definitively the meaning of original building in PPG2 paragraph 3.6.

• Court of Appeal (Civil Division) — The appeal from Cranston J was dismissed: [2009] EWCA Civ 1494.
• Administrative Court, Queen’s Bench Division — Cranston J quashed the planning inspector’s decision because the inspector had failed to consider material explanatory text and had misinterpreted policy 22.