Gladman Developments Ltd v Canterbury City Council

Development-plan policies must be interpreted objectively, in their full textual and policy context. Although individual policies may be expressed permissively, they can collectively form a complete spatial strategy. Where that strategy identifies the locations and types of housing development that may be permitted, development outside the identified hierarchy will ordinarily conflict with the plan rather than fall into a policy vacuum.

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a decision-maker must identify and understand the relevant policies and decide whether the proposal accords with the development plan as a whole. If the proposal conflicts with the plan, permission may still be granted only if material considerations justify departing from the statutory presumption in favour of the plan. The policy presumption in favour of sustainable development does not replace that statutory exercise.

Gladman Developments Ltd sought planning permission for up to 85 dwellings on land outside the built-up area of Blean. A planning inspector allowed its appeal under section 78 of the Town and Country Planning Act 1990, concluding that the proposal did not conflict with Policies H1 or H9 of the adopted local plan and that the plan was otherwise silent.

On the council’s section 288 challenge, Dove J quashed the inspector’s decision: [2017] EWHC 1611 (Admin). Gladman appealed. The central issue was whether the inspector had misinterpreted and misapplied the adopted and emerging local-plan policies, and thereby failed to determine the proposal in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. Appeal dismissed. Lord Justice Lindblom’s reasoning was agreed by Floyd LJ and the Master of the Rolls. Dove J had correctly quashed the inspector’s decision.

2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives statutory primacy to the development plan. The decision-maker must identify and understand the relevant policies, decide whether the proposal accords with the plan read as a whole, and then consider whether material considerations justify a departure. The interpretation of development-plan policy is a question of law, though its application after correct interpretation is generally a matter of planning judgment.

3. The adopted plan’s saved housing policies formed a comprehensive hierarchy of locations and circumstances in which new housing could be acceptable. That hierarchy did not become incomplete merely because former Policy H3, concerning large unidentified sites, was not saved. The policies had to be read together and in their context. Their permissive wording did not prevent the necessary inference that development lacking their express support conflicted with the plan’s housing strategy.

4. Policy H1 did not render development outside its identified categories neutral. Policy H9 applied only to more than minor housing on previously developed land within villages. Its four criteria qualified support for that specified form of development; they did not enlarge the policy to development on undeveloped land outside a village. The inspector therefore erred by treating the criteria as sufficient to establish compliance by the proposed development.

5. The plan was not “silent” for the purposes of national policy. It contained sufficient relevant policy to determine whether the proposal was acceptable in principle. The inspector wrongly treated the proposal as neutral under the plan and applied only the policy presumption in favour of sustainable development. He should first have recognised conflict with the plan and considered whether material considerations were sufficiently weighty to overcome the statutory presumption. Those errors independently required the decision to be quashed.

6. The challenge concerning emerging Policy SP4 added nothing necessary to the result. Even if Gladman’s argument on that policy had been correct, the errors concerning Policies H1 and H9 were sufficient to defeat the appeal.

• Court of Appeal (Civil Division): dismissed Gladman’s appeal and upheld the quashing of the inspector’s decision.
• Administrative Court, Planning Court: Dove J allowed the council’s section 288 challenge and quashed the inspector’s decision: [2017] EWHC 1611 (Admin).
• Planning inspector: allowed Gladman’s appeal under section 78 of the Town and Country Planning Act 1990 and granted planning permission.