High Court quashes town centre planning permission granted by former council

Unclear drafting and omitted commas in a planning policy have contributed to Somerset Council losing a High Court case over development in Frome town centre.

The former Mendip District Council in August 2922 granted outline planning permission for a mixed use development at Saxonvale in Frome town centre on land known as the Acorn site.

Somerset inherited this when it was formed in April 2023 along with ownership of the land and a deal with Acorn Property Group.

Claimant Damon Moore owns adjacent land known as the Silk Mill and applied for a judicial review on what Mr Justice Jay said “turns on a narrow issue concerning the interpretation of Core Policy 6 of [Somerset’s] Local Plan Part 1: Strategies and Policies 2006-2029”.

Jay J explained in Moore v Somerset Council [2023] EWHC 2544 (KB) that although the development proposal was controversial both within and beyond the council, “the success or otherwise of this application must turn solely on the application of well-established legal principles to the final iteration of the parties’ submissions”.

The planning officer’s report informed planning committee members that the application was compliant with CP6 and that it proposed 4,181m2 of non-residential floorspace.

Jay J said: “The 4,181m2 figure is important for this reason. It is less than 50% of 11,850m2 which is the headline figure for town centre redevelopment in CP6.”

He said the element of retail use within the outline grant had not been quantified and so “it follows that the extent to which the 4.181m2 figure should be reduced correspondingly cannot be ascertained”.

It was argued for Mr Moore that the policy meant at least 50% of the total floorspace requirement should be fulfilled by redevelopments within Saxonvale.

Given that 4,181m2 is less than 5,925m2, and that no reason was given by the planning officer for departing from the development plan, the only proper course on this premise was to have refused this planning application, the court heard.

Somerset though argued that CP6 was a high-level, indicative policy which sketched out how needs might be satisfied and did not set any requirement that at least 50% of the need must be within the parameters of Saxonvale with the balance being met elsewhere.

Jay J said: “I agree that CP6 is not, strictly speaking, an allocation policy. I also agree…that this local plan does not expressly require that all ’town centre uses’ must be accommodated within the Frome Town Centre Development Area.”

But he said the policy concerned redevelopments within Frome town centre, including Saxonvale and not those elsewhere in the town.

The judge said part of the policy was poorly drafted and “would certainly benefit from the insertion of punctuation”.

This section read: “At least half of the 11,500 sqm of flexible office/studio space requirement (see Table 10) including a permanent site for FETE within the Saxonvale area.” It was common ground that the 11,500 figure should have read 11,850.

He went on: “It is not just the absence of punctuation that bedevils this provision. The FETE educational [establishment] site, undoubtedly to be provided within Saxonvale and nowhere else, is completely different in character from the ‘flexible office/studio space’ stipulation.

“This uncomfortable combination of developments or redevelopments which do not belong together under the same rubric has brought about the present difficulty.”

Somerset said the policy meant at least 50% of 11,850m2 floorspace should be delivered within Frome town centre as a whole.

“The defendant’s contention is that the elsewhere is anywhere else in Frome, not excluding the town centre,” Jay J said.

He said the divergence between the parties’ respective positions was “very narrow” and “had there been a comma after the end of the parenthesis, [Somerset’s] case would have been stronger.

“It would have been even stronger if the draftsperson had substituted ‘and’ for ‘including’. It would have been irresistible had there been a fifth indent in these terms, and also a sixth: ‘at least half of the 11,500 sqm of flexible office/studio space requirement [and] a permanent site for FETE within the Saxonvale area’.”

Jay J said he had to interpret the policy as it was, not as its hypothetical wording might have been and “the absence of punctuation harms the claimant's case albeit not to the same extent as it harms the defendant’s.

He said the more natural reading showed the policy concerned development within the Saxonvale area.

The judge said in conclusion: “Overall, therefore, a combination of a linguistic and a purposive approach has driven me to conclude that the claimant’s case, in its alternative formulation, is correct.” He quashed the planning permission granted.

Mark Smulian