Thurston Parish Council, R (on the application of) v Mid Suffolk District Council & Anor.

The interpretation of a planning policy is a question of law. Its application to the facts is for the planning authority, subject to review for irrationality. A policy stating that development should be focused within a settlement boundary is not necessarily an absolute prohibition on all development outside it. Officer reports must be read reasonably and as a whole for an informed planning committee. The relevant question is whether the report materially misled members on an issue bearing on the decision. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, conflict with the development plan may be outweighed by material considerations. Paragraph 14 of the NPPF is relevant only where the proposed development conflicts with the neighbourhood plan.

Mid Suffolk District Council granted outline planning permission for up to 210 dwellings and associated works on land outside Thurston’s settlement boundary. Thurston Parish Council brought judicial review proceedings. The High Court quashed the permission, holding that planning officers had misdirected the Committee on Policy 1 of the Neighbourhood Plan and on the NPPF tilted balance: [2022] EWHC 352 (Admin).

The District Council and Bloor Homes Limited appealed. The Court of Appeal considered whether Policy 1 prohibited general housing development outside the settlement boundary, whether the officers’ report materially misled the Committee, and whether paragraphs 11(d) and 14 of the NPPF were properly engaged.

Singh LJ gave the judgment of the court. Whipple LJ and Lewison LJ agreed.

1. Appeals allowed. The High Court’s order quashing the planning permission was set aside.

2. The court distinguished the interpretation of a planning policy from its application. Interpretation is a question of law for the court. Application is a matter for the planning authority’s judgment and may be challenged only on irrationality grounds. This distinction was emphasised in Hopkins Homes Ltd v Secretary of State for Community and Local Government [2017] UKSC 37 and Canterbury City Council v Secretary of State for Communities and Local Government [2019] EWCA Civ 669. The present challenge concerned application, rather than misinterpretation.

3. Policy 1 required development to be focused within Thurston’s settlement boundary, but the word focused was not exclusive or absolute. The wider Neighbourhood Plan recognised significant future housing needs and Thurston’s proposed core-village role. The Committee was therefore entitled to regard the proposal as creating tension with, rather than conflict with, Policy 1.

4. An officer’s report must be read with reasonable benevolence and in the context of an informed committee with local knowledge. The question is whether, read fairly as a whole, it materially misled members on a matter bearing on the decision and whether the error was such that the decision might have been different. The report identified the relevant development-plan components, the settlement-boundary issue, the out-of-date local policies, the housing shortfall, the draft local-plan allocation and the material benefits of the proposal. It adequately advised the Committee to weigh the conflict with the development plan against material considerations.

5. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives the development plan statutory primacy, but permits a departure where material considerations indicate otherwise. The Committee was entitled to grant permission after undertaking that exercise.

6. The advice that the NPPF paragraph 11(d) tilted balance applied was not legally flawed, given the out-of-date status of relevant adopted policies and the Neighbourhood Plan’s failure to satisfy paragraph 14(b). Paragraph 14 applies to development which conflicts with a neighbourhood plan. Since the proposal was not in conflict with the Neighbourhood Plan on the proper application of Policy 1, paragraph 14 was not relevant. The High Court’s separate view that all paragraph 14 conditions were required was unchallenged but was not determinative.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1417, both appeals were allowed and the order quashing the planning permission was set aside.
• High Court of Justice, King’s Bench Division, Planning Court: In [2022] EWHC 352 (Admin), the planning permission was quashed on grounds concerning Policy 1, the tilted balance and paragraph 14 of the NPPF.