High Court backs council over permissive policy and sites outside identified locations

A High Court judge has upheld a legal challenge by Canterbury City Council over a planning inspector’s grant of planning permission for an 85-home development on a greenfield site.

The site at the centre of Canterbury City Council v SSCLG & Anor [2018] EWHC 1611 was in Blean Common.

Canterbury’s Planning Committee had previously refused the application. The grounds for this decision included the fact it was a sporadic form of development outside of the village area of Blean, would represent a harmful form of development in a rural location, and was detrimental to the character and appearance of surrounding rural environment in general.

The applicant, Gladman Homes, appealed and on 11 July 2017 a planning inspector granted conditional planning permission for the development.

In the High Court the council advanced the following grounds around the interpretation of planning policy relevant to the decision:

1. The inspector misinterpreted policies H1 and H9 of the Canterbury District Local Plan 2006 ("The Local Plan").
2. The interpretation which the inspector gave to policy H9 of the Local Plan was not only not advanced as legitimate by either party, but was also in substance wrong.
3. The inspector's interpretation of the (at that time) emerging Canterbury District Local Plan ("The Draft Local Plan") and in particular his interpretation of policy SP4 in the draft Local Plan. In relation to Grounds 1 and 2 it was contended that since the inspector misinterpreted policies from the development plan he failed to lawfully apply the requirements of the exercise of the discretion in relation to the grant of planning permission in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004 which are set out below.

Both the Secretary of State and Gladman Developments contended that the interpretations of each of those policies by the inspector was accurate and lawful and thus that there was no error of law in the decision which the inspector reached.

In the High Court Mr Justice Dove said he was satisfied that the inspector was in error when he interpreted policies H1 and H9 as being silent in relation to housing development which was not on previously developed land within urban areas and therefore concluded that there was no conflict with either of those policies in principle.

“Taking the language of the policy itself, and without reference to any of the explanatory text, it is clear that the purpose of the policy is to identify, for the purposes of housing development, the types of location where the plan required housing development to take place,” the judge said.

“In essence, the locations which are identified for the permission of residential development are those allocated in the plan, or non-identified sites on previously developed land within urban areas (if other criteria unrelated to location are met). It follows that if housing development is proposed in a location which does not accord with the types of locations specified in the policy, that proposal will be inconsistent with and unsupported by the policy and therefore not in accordance with it and in conflict with it.”

Mr Justice Dove added that the interpretation was simple: “policies H1 and H9 identify the types of location where housing development will be permitted; if housing development is proposed in other types of location it is not supported by the policy and therefore in conflict with it and, to the extent of that policy (as part of the exercise of assessing compliance with the development plan taken as a whole), not in accordance with the development plan.

“Whether it is described as a "negative corollary", or a necessary inference, or an obvious implication, what matters is that it is clear that the purpose of the policy is to identify those types of location where housing development is to be permitted and if an application is made outside one of those identified types of location then that is clearly not in accordance with the policy.”

The judge said that he was unable to accept that the inspector correctly interpreted the texts of policy H1 and H9 and therefore correctly approached the application of section 38(6).

“The second defendant's housing proposal was not supported by and was in conflict with policy H1 and H9, in that it was a housing proposal in a location which was not identified by policies H1 and H9 as the type of location where housing development would be permitted,” Mr Justice Dove said.

“In my judgment it is a fallacy to suggest that simply because the policy is expressed in permissive language that it has nothing to say about, and is irrelevant to, housing proposals in locations other than the types where permission is contemplated as potentially being forthcoming.”

In relation to ground 2, the judge said he was also satisfied that the inspector made an error of law in his interpretation of policy H9 beyond that which has already been identified under Ground 1. Mr Justice Dove said ground 3 added little to his overall conclusion on the inpector’s failure to properly interpret the policies.

The judge therefore found for the council and quashed the inspector’s decision. The appeal will now need to be redetermined by a different inspector.

Mr Justice Dove also ordered the Secretary of State to pay the council’s legal costs of £19,218.

Isabella Tafur of Francis Taylor Building appeared for the council, instructed by the authority’s legal team. Sarah Sackman, also of FTB, appeared for the Secretary of State, instructed by the Government Legal Department, while John Barrett of Kings Chambers appeared for Gladman, instructed by Irwin Mitchell.

Simon Thomas, Head of Planning at Canterbury, said: “It’s highly unusual for us to take the government to court in this way, but there were important issues at stake here.

“Our Local Plan has very clear policies on where we will allow development and on the protection of our precious countryside. The Inspector misinterpreted these and reached a decision that we felt we had no option but to challenge on behalf of local residents.

“It is not the end for this specific planning application, though, as the Planning Inspectorate is now required to reconsider the appeal.”