Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must determine whether a proposal accords with the development plan as a whole. This requires an evaluation of the main relevant policy areas, although it does not require a mechanistic examination of every policy.

A development-plan diagram or proposals map may define the indicative geographical scope of a policy and assist its objective interpretation. Where a site is clearly outside the area shown and the decision-maker finds no development-plan support for treating it as designated, the policy cannot lawfully be applied to that site. Historic local views, an embryonic future plan and a councillor’s opinion cannot alter the proper interpretation of the existing plan.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s dismissal of its planning appeal concerning a residential development of up to 550 dwellings. The local planning authority had refused permission, but the inspector recommended that the appeal be allowed.

The Secretary of State found that the site was not within a designated green wedge. He nevertheless concluded that the development conflicted with the green-wedge policy and that this conflict rendered the scheme contrary to the development plan overall.

The issues were whether the Secretary of State had lawfully applied section 38(6) of the Planning and Compulsory Purchase Act 2004, and whether he could lawfully find conflict with the green-wedge policy after finding that the site lay outside the designated area.

1. The application succeeded and the decision letter was quashed. The Secretary of State had not lawfully discharged the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004.

2. Determining conformity with the development plan is an essential substantive step in the decision-making process. The decision-maker need not address every policy raised by the parties. The decision-maker must, however, evaluate the main relevant policy areas and reach a clear conclusion about whether the proposal accords with the development plan as a whole. Only after that exercise can the planning balance be undertaken properly: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, R v Rochdale Borough Council, ex parte Milne [2000] EWHC 650 and BDW Trading Ltd v Secretary of State for Communities and Local Government [2015] EWHC 886 (Admin) applied.

3. The Secretary of State had treated conflict with one policy, CS10(3), as sufficient to establish conflict with the development plan overall. He had not first evaluated the proposal against the other relevant policy areas. R (Hampton Bishop Parish Council) v Herefordshire County Council [2014] EWCA Civ 878 did not establish that breach of one key policy was necessarily sufficient. The decision there followed consideration of numerous relevant policies and was materially different.

4. The core strategy’s key diagram was a relevant aid to the objective interpretation and geographical application of policy CS10(3). Although indicative, it showed the broad location of the protected green wedge. The appeal site was clearly outside that area. The proposals-map principle in Fox Land & Property v Secretary of State for Communities and Local Government [2015] EWCA Civ 298 applied.

5. Having expressly found no development-plan support for treating the site as lying within a designated green wedge, the Secretary of State could not lawfully assess the site under CS10(3) and then find conflict with that policy. That approach misunderstood or misapplied the policy.

6. The local authority’s historic position, the prospective development-plan document and a councillor’s opinion were immaterial to the correct interpretation of the existing policy. The future document was at too early a stage to carry weight. The Secretary of State therefore also erred by taking immaterial considerations into account.

7. The second defendant was ordered to pay the claimant’s costs, to be agreed or subjected to detailed assessment.

1. High Court (Administrative Court): The claimant’s application under section 288 of the Town and Country Planning Act 1990 succeeded. The Secretary of State’s decision letter was quashed: [2015] EWHC 2489 (Admin).

2. Secretary of State: The claimant’s planning appeal was dismissed, notwithstanding the inspector’s recommendation that it be allowed.

3. Local planning authority: The application for planning permission was refused.