Interpreting permissive wording

The Court of Appeal has upheld the decision to quash an inspector’s decision based on his misinterpretation of permissively worded development plan policies. Isabella Tafur explains why.

In Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 a strong Court of Appeal comprising the Master of the Rolls, Lindblom LJ and Floyd LJ, has upheld the decision of Dove J to quash the grant of planning permission for a housing development in Canterbury, on the basis of the Inspector’s misinterpretation of planning policy.

The Inspector had found that the proposed development of a greenfield site was not in conflict with the development plan because its policies were permissively worded: they allowed for housing on allocated sites and on brownfield land within urban areas and villages but contained no specific preclusion on housing elsewhere.

Canterbury City Council successfully challenged that decision in the High Court and the Inspector’s decision was quashed. Gladman appealed the judgment of Dove J, arguing that the relevant policies were supportive of housing development at the specified locations but did not purport to identify the only locations where housing would be acceptable. Development on locations outside of the policies would not be in conflict with those policies in the absence of a specific preclusion of development in other locations or general countryside protection policy.

The Court of Appeal rejected that argument. The saved policies in the Local Plan formed a comprehensive strategy for housing development in the council’s area. Read as a whole, including its vision and objectives, the Local Plan contained a spatial vision for the delivery of housing in the area with a clear hierarchy of acceptable locations. Housing development in locations other than those identified in the policies could not be said to accord with the Plan. Nor could the Plan be said to be silent as to housing in other locations. Rather, the proposed development was in conflict with the policies and with the Plan overall. The fact that the policies were expressed in permissive terms did not exclude the obvious corollary that proposals without their explicit support would not be in accordance with the Plan. The Inspector’s failure to recognise the policy conflict meant he had not discharged his duty under s.38(6) of the Planning and Compulsory Purchase Act 2004 and his decision could not stand.

Isabella Tafur is a barrister at Francis Taylor Building. She represented Canterbury City Council in the planning inquiry, the High Court and the Court of Appeal.