Ashburton Trading Ltd v Secretary of State for Communities And Local Government & Anor

The interpretation of a development plan policy is a question of law. A policy must be read objectively, according to its language and proper context, although its application to particular facts may involve planning judgment.

Supporting text may resolve ambiguity in a policy. Section 17(5) of the Planning and Compulsory Purchase Act 2004 does not prevent such recourse where the supporting text clarifies rather than conflicts with the policy.

Where a decision-maker wrongly finds conformity with the development plan, the court cannot assume that permission would inevitably have been granted after weighing the breach against other material considerations. Quashing is appropriate where that distinct statutory exercise remains undone and its result cannot confidently be predicted.

A planning inspector granted Ashburton Trading Ltd permission for a 25-storey building in Islington. He interpreted Core Strategy Policy CS9(E) as permitting tall buildings outside Bunhill and Clerkenwell where the local area was not of medium-to-low-level character.

On the Council’s application under section 288 of the Town and Country Planning Act 1990, HHJ Mackie QC held that the inspector had misconstrued the policy and quashed the permission: [2013] EWHC 2320 (Admin).

Ashburton appealed. The principal issues were whether CS9(E) prohibited support for tall buildings outside Bunhill and Clerkenwell, and whether the inspector’s decision should nevertheless have been preserved because the same planning outcome was inevitable.

1. The appeal was dismissed. The interpretation of CS9(E) was a question of law for the court. Planning policies are interpreted objectively according to their language in its proper context. They are not construed with the same rigour as statutes or contracts. Although applying a policy to particular facts can involve planning judgment, the meaning of “generally” in CS9(E) presented a hard-edged question of construction. The assessment of the area’s character had already occurred through the Core Strategy process: [2012] PTSR 983 applied.

2. CS9(E) meant that tall buildings would not be supported outside the Bunhill and Clerkenwell area. Its final sentence defined the scope of the possible exception to the general rule. Had exceptions throughout the borough been intended, the policy would have said so. The word “generally” emphasised that the general rule was subject to the stated exception. Even if it were surplusage, that would not justify Ashburton’s interpretation because surplusage arguments ordinarily carry little weight.

3. Any doubt was removed by paragraph 3.1.5 of the supporting text. Section 17(5) of the Planning and Compulsory Purchase Act 2004 did not apply because ambiguity in CS9(E) did not amount to conflict with the supporting text. The provision did not prevent use of that text to resolve uncertainty. The evidence-base assessment was also a permissible interpretative aid because the supporting text specifically referred to it.

4. The deputy judge had properly quashed the inspector’s decision. Weighing a serious breach of CS9(E) against other material considerations was a distinctly different exercise from the inspector’s assessment, which had proceeded on the basis that the proposal conformed with the development plan. The inspector had not performed the weighing required by section 38(6) of the Planning and Compulsory Purchase Act 2004. The court could not predict its result with confidence.

5. The matter was remitted to the Secretary of State for reconsideration in accordance with the judgment. Davis LJ and Gloster LJ agreed with the Master of the Rolls.

1. Court of Appeal (Civil Division): The appeal was dismissed and the matter was remitted to the Secretary of State for reconsideration: [2014] EWCA Civ 378.

2. High Court, Administrative Court: HHJ Mackie QC allowed the Council’s section 288 appeal and quashed the inspector’s grant of planning permission: [2013] EWHC 2320 (Admin).

3. Secretary of State’s planning inspector: The inspector allowed Appeal A and granted permission for the 25-storey development. He dismissed the alternative proposal in Appeal B, which was not challenged.