Council and developer win appeal over quashing of planning permission for 210 homes

The Court of Appeal has overturned a High Court ruling in a case concerning the distinction between the interpretation and application of planning policies.

It allowed appeals by Mid Suffolk District Council and developer Bloor Homes against a ruling in favour of Thurston Parish Council.

Cornerstone Barristers, from which Tom Cosgrove KC and Ruchi Parekh represented Mid Suffolk, said the case explained “the important distinction between the interpretation and application of planning policy”.

In Thurston Parish Council, R (On the Application Of) v Mid Suffolk District Council & Anor [2022] EWCA Civ 1417 Singh LJ in his lead judgment agreed that Mid Suffolk’s decision to grant Bloor planning permission for 210 homes did not involve any misinterpretation of a neighbourhood plan.

He held that Timothy Mould QC in his earlier ruling fell “into the error of confusing the interpretation of a planning policy with its application”.

Singh LJ said Mid Suffolk had been entitled to reach the conclusion it did in accordance with the terms of section 38(6) of the 2004 Act.

He said the main issue was whether Mid Suffolk was misled by its planning officers as to the correct interpretation of a policy in the Thurston Neighbourhood Development Plan, which said new development should be sited within the existing settlement.

Mr Mould had accepted officers failed to draw attention to the fundamental conflict between the proposed development of the site for general housing and the key spatial objectives of the neighbourhood plan.

Mid Suffolk and Bloor appealed on the ground that Mr Mould erred in law in his construction of the neighbourhood plan policy.

Singh LJ said: “It is well established that, while the interpretation of a planning policy is a question of law and is one therefore for the court to determine, the application of a policy is not a question of law and is entrusted to the relevant decision-maker, subject to review only on the ground of irrationality.”

He said the question of whether proposed development accorded with a planning policy may raise both questions of interpretation of that policy and questions of its application and it was “important to keep that distinction well in mind”.

Singh LJ said: “I cannot see anything in the planning officer's report which constitutes an interpretation of [the policy] in the neighbourhood plan, let alone a misinterpretation of it.”

Thurston’s case was that Bloor’s application was clearly wrong in being a development outside the settlement boundary.

The parish argued that had Mid Suffolk understood the policy correctly, it could only have concluded there was a conflict between that policy and this proposed development since it was outside the settlement boundary.

"But that is predicated on an interpretation that [the policy] is absolute in its terms,” Singh LJ said.

“It clearly is not even as a matter of textual analysis: the word ‘focused’ [in it] does not mean that there can never be any development of a general kind outside a settlement boundary.”

There had been no misinterpretation of planning policy by the officers, he concluded.

Lord Justice Lewison and Lady Justice Whipple agreed.

Mark Smulian