JJ Gallagher Ltd & Ors v Cherwell District Council & Anor

A development-plan policy must be interpreted primarily from its wording, read fairly as a whole, with supporting text used where necessary. Resort to extrinsic examination material is permissible only in limited circumstances and is not justified merely because a party seeks to alter the apparent meaning of an adopted policy.

Where an inspector’s reasoning supports a development allocation but is inconsistent with a restrictive provision in the recommended policy, the inspector must explain and justify retaining that provision. Failure to do so may constitute an error of law or irrationality. On remittal, the court may give directions that give effect to the inspector’s existing planning judgment without requiring a further examination where the relevant issues have already been fully considered.

The claimants had interests in land allocated for 300 dwellings in the Cherwell Local Plan. They challenged the adoption of Policy Bicester 13 under section 113(3) of the Planning and Compulsory Purchase Act 2004.

The policy stated that the part of the allocation within the River Ray Conservation Target Area should be kept free from built development. The claimants contended that the inspector’s report had proceeded on the basis that development could take place within the wider Conservation Target Area, subject to protection of the Local Wildlife Site and mitigation. The council accepted that the inspector’s reasoning was inadequate. The Secretary of State argued that the policy was ambiguous and could be clarified without remittal.

The central issues were the proper construction of the policy, the lawfulness of the inspector’s recommendation, and the appropriate remedy.

1. Construction. Policy Bicester 13 was clear. Read with its supporting text and the Local Plan as a whole, it prohibited built development within the part of the allocated site falling within the Conservation Target Area. Policy ESD11, which was general in character, did not displace that site-specific restriction.
2. The court should begin with the wording of a planning policy and, if necessary, its supporting text. Extrinsic documents, including examination transcripts and earlier versions of an inspector’s report, should not be searched for meaning where the adopted plan is clear. Their use is confined by the plan and by documents incorporated into or expressly referred to in it.
3. Inspector’s reasoning. The inspector’s report relied on indicative layouts showing development within part of the Conservation Target Area. It rejected reducing the developable area to exclude development throughout that area, and balanced housing delivery against environmental protection through an overall package of mitigation and biodiversity enhancement. Those conclusions were inconsistent with retaining the sentence prohibiting all built development within the Conservation Target Area. The inspector gave no reason for retaining it. He therefore erred in law by failing to give reasons, or alternatively acted irrationally.
4. Remedy. The first defendant had no power to delete the sentence itself because that would materially alter the plan. The claim succeeded under section 113. Policy Bicester 13 was to be treated as not adopted and remitted to the Secretary of State, with directions for an appointed inspector to recommend adoption subject to deletion of the disputed sentence and for the council then to adopt the policy as modified. A further examination and sustainability appraisal were unnecessary because the relevant issues had already been fully ventilated.