Canterbury City Council v SSCLG & Anor

A development plan policy which identifies the locations where a particular form of development will be permitted may, by necessary implication, place development elsewhere in conflict with the policy. Express prohibitory wording is unnecessary. Planning policies must be interpreted objectively, practically and in their full policy context.

Interpretation is a question of law for the court. Application and weight are matters of planning judgment. A policy’s age may affect its weight, but its legal meaning does not change over time. Supporting text informs interpretation but cannot add a freestanding policy requirement. A decision-maker who misconstrues relevant development plan policies cannot lawfully perform the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004.

The local planning authority refused permission for up to 85 dwellings on undeveloped land outside the built-up area of Blean. On appeal, an Inspector granted conditional permission. He treated saved policies H1 and H9 of the Canterbury District Local Plan 2006 as permissive policies which did not conflict with housing development outside the locations they expressly identified.

The authority challenged the decision under section 288 of the Town and Country Planning Act 1990. It contended that the Inspector had misconstrued policies H1 and H9, had wrongly extended the scope of policy H9, and had similarly misconstrued emerging policy SP4. The central issue was whether policies specifying locations where housing would be permitted were silent about housing elsewhere or, by necessary implication, placed such development in conflict with the plan.

1. The application was allowed. The Inspector materially misconstrued saved policies H1 and H9. His decision was quashed and the planning appeal was remitted to the Secretary of State for redetermination by a different Inspector.

2. The interpretation of planning policy is a question of law. Policy must be read objectively, in its proper context and with its practical planning purpose in mind. It is not construed as though it were a statute or contract. The court must distinguish interpretation from the application of policy to particular facts and the weight assigned to it, both of which are matters for the decision-maker: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 and Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 applied.

3. Policies H1 and H9 identified the kinds of location in which housing development was to be permitted. Housing proposed outside those locations was unsupported by, inconsistent with and in conflict with the policies. That conclusion arose by necessary implication from their purpose. It did not depend on express wording prohibiting development in every other location. Treating permissive wording as silent about all unlisted locations was overly legalistic and erroneous.

4. The supporting text and overarching strategy reinforced that interpretation. Supporting text is relevant to construing a policy but is not itself policy and cannot add or override a policy requirement. Saving a policy preserves supporting text needed to maintain its meaning: R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567 applied.

5. The expiry of the plan period did not change the policies’ meaning. Age and subsequent events could affect the weight given to a correctly interpreted policy, but interpretation remained a distinct and stable question of law.

6. Policy H9 applied to development which cumulatively was in excess of minor development, on previously developed land and within a village. The Inspector wrongly treated its criteria as applying where any one of several alternative circumstances existed, including development outside a village or on land which was not brownfield.

7. Because the Inspector proceeded on a misunderstanding of the development plan, he failed lawfully to apply section 38(6) of the Planning and Compulsory Purchase Act 2004. Ground 1 and Ground 2 succeeded. Ground 3 concerning draft policy SP4 added little to that dispositive conclusion.

1. High Court (Administrative Court): The authority’s application under section 288 of the Town and Country Planning Act 1990 was allowed. The Inspector’s decision was quashed and the appeal was remitted to the Secretary of State for redetermination by a different Inspector: [2018] EWHC 1611 (Admin).

2. Planning appeal: Following a public inquiry, the Secretary of State’s Inspector allowed the developer’s appeal and granted conditional planning permission on 11 July 2017.

3. Local planning authority: The authority refused planning permission on 19 February 2016.