Beau Songe Development Limited v The United Basalt Products Limited and another

Approved planning documents must be interpreted objectively by reference to their language and proper context. The task is one of legal interpretation, not a choice between legalistic and practitioner approaches. Planning authorities and specialist tribunals retain judgment in applying policy, particularly where policies contain broad or potentially inconsistent statements, but their conclusions must rest on the documents themselves. A map designating a buffer zone under a statutory planning scheme cannot readily be treated as merely indicative where the governing legislation requires restrictions to be directed to particular areas. The designation should therefore be given practical and legally meaningful effect, while the planning instruments must be read as a whole.

The appellant obtained an environmental impact assessment licence for a residential subdivision in Mauritius. The respondent company operated a nearby stone-crushing plant and objected that the proposed development entered a 1km buffer zone shown on the Development Management Map forming part of the approved 2006 Black River Outline Planning Scheme.

The Environment and Land Use Appeal Tribunal dismissed the objection and upheld the licence on the basis that the buffer zone was indicative, allowing an in-concreto assessment of the project. The Supreme Court of Mauritius allowed the respondent’s appeal and quashed the licence decision. The central issue before the Board was whether the mapped 1km radius was indicative up to 1km or prescriptive of a 1km extent.

1. Appeal dismissed. The Board agreed with the Supreme Court’s conclusion that the Minister’s decision to grant the environmental impact assessment licence should be quashed. The appeal was dismissed with costs.
2. Planning policy documents are interpreted objectively by reference to the language used, read in its proper context. There are no special interpretive rules for planning policy documents. They are not to be construed as statutes or contracts, since they contain broad statements of policy and may require planning judgment in their application: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; Hopkin Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37.
3. The specialist Tribunal was entitled to respect as an expert body on planning and policy judgment. It nevertheless erred by treating interpretation of the approved planning documents as an issue to be resolved through expert evidence and a supposed distinction between lawyers and planning practitioners. Its first task was legal interpretation of the documents themselves. The Supreme Court was right to find that this amounted to a misdirection.
4. The planning instruments contained inconsistencies and ambiguities. The NDS housing policies could support a general principle against housing within 1km of a bad-neighbour development, while other NDS policies and planning guidance referred to buffer zones extending “up to 1km”. The 2006 Outline Scheme did not clearly explain the purpose of the mapped zone, and its policy link was directed principally to new proposals.
5. Despite those difficulties, the first appearance of the UBP buffer zone in the 2006 Outline Scheme indicated an intention to supplement the NDS with a more precise boundary. Treating the designation as merely indicative could deprive it of practical utility. It was also difficult to reconcile such imprecision with the Town and Country Planning Act 1954, under which an outline scheme had to address restrictions on particular areas. The mapped 1km buffer zone therefore had to be given meaningful effect.
6. The Board emphasised the need to improve the clarity and consistency of the planning documents and to clarify the interaction between the Town and Country Planning Act 1954 and the Planning and Development Act 2004 pending full implementation of the latter.

• Privy Council: The appeal from the Supreme Court of Mauritius was dismissed with costs: [2018] UKPC 1.
• Supreme Court of Mauritius: On 7 July 2016, the court allowed the respondent’s appeal and quashed the Tribunal’s determination.
• Environment and Land Use Appeal Tribunal: On 13 January 2014, the Tribunal dismissed the objection appeal and upheld the Minister’s grant of the environmental impact assessment licence.