Glenn Kinnersley, R (on the application of) v Maidstone Borough Council

Development-plan policies are interpreted objectively by their language in context, rather than as statutes or contracts. Where a policy permits redevelopment of brownfield land only if the “site” lacks high environmental value, “site” ordinarily means the whole application site. Residential garden land excluded from the brownfield definition may still be relevant to assessing the environmental value of the site as a whole. The significant environmental improvement criterion is assessed by reference to the proposed redevelopment as a whole. Earlier planning conclusions on critical issues may be material considerations, but vague consultation comments and conclusions in a quashed decision will not necessarily require explanation.

Paul Dixon applied for planning permission to convert a studio building into two dwellings, with associated works to an historic walled garden and access arrangements. Maidstone Borough Council granted planning permission and listed building consent.

Glenn Kinnersley, the owner of the nearby listed house, sought judicial review. The High Court dismissed the claim, holding that Policy DM5 applied only to the brownfield part of the site and that earlier conservation officers’ views did not require specific consideration. Permission to appeal was granted on those two issues. The central questions were the meaning of “site” in Policy DM5 and whether the earlier views were material considerations.

The Court of Appeal, in a unanimous judgment delivered by Lewis LJ with Moylan LJ and Bean LJ agreeing, allowed the appeal in part.

1. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the Local Plan formed part of the development-plan framework. Planning policies had to be interpreted objectively by their language in context, not as though they were statutes or contracts. The court applied the principles identified in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] UKSC 13 and Rectory Homes Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2098 (Admin).
2. Policy DM5’s reference to the “site” meant the application site as a whole. It did not mean only the brownfield land on which physical redevelopment was proposed. The wording, the use of “site” rather than “brownfield land”, and the policy’s purpose all supported that construction.
3. Residential gardens were excluded from the definition of brownfield land and therefore did not benefit from the policy’s presumption in favour of qualifying redevelopment. That exclusion did not prevent other aspects of Policy DM5 applying to garden land included within a single application. The environmental value of the whole application site therefore had to be assessed.
4. The significant environmental improvement criterion was not confined to a particular geographical area. The decision-maker had to assess the proposed redevelopment as a whole. The improvement could relate to the whole site, part of it, land outside it, or a combination of those areas.
5. The established planning law principles concerning earlier decisions were also applied. A planning authority’s or inspector’s conclusion on a critical issue may be a material consideration for a later decision, and departure may require reasons. A quashed decision has no legal effect, but conclusions on a discrete issue may remain material where the grounds of quashing do not affect those conclusions. The court applied North Wiltshire District Council and the Secretary of State for the Environment and Clover (1992) 65 P. & C.R. 137, Vallis v Secretary of State for Local Government [2012] EWHC 578 (Admin), R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) and Fox v Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198.
6. The earlier conservation comments did not disclose a sufficiently clear conclusion on a critical issue. In any event, the current officer’s report focused on the effect of the proposed redevelopment on the listed building. Any difference concerning the existing studio building was not material. Ground 2 therefore failed.

The planning permission and listed building consent were quashed and the matter was remitted to the Council for reconsideration under Policy DM5.

1. Court of Appeal (Civil Division) [2023] EWCA Civ 172: allowed the appeal in part, quashed the planning permission and listed building consent, and remitted the matter to Maidstone Borough Council.
2. High Court of Justice, Queen’s Bench Division, Administrative Court (Planning Court): HHJ Walden-Smith dismissed the judicial review claim, holding that Policy DM5 applied only to the brownfield part of the site and that the earlier conservation views were not material.