In development
The Supreme Court has issued an important ruling on the interpretation of development plan policies, writes John Bosworth.
In the case of Tesco Stores Limited (Appellants) v Dundee City Council (Respondents) (Scotland) [2012] UKSC 13 Tesco appealed against a decision dismissing its application to judicially review the decision of the local planning authority, to grant planning permission to one of its competitors for the construction of a store located outside the city centre.
Tesco argued that in granting permission the planning authority had misunderstood a requirement of one of the policies in the development plan. The requirement under scrutiny was that: "no suitable site was available, in the first instance, within and thereafter on the edge for the city, town or district centres".
Plainly, the planning authority could only grant permission to build outside of the city centre where there was no possible land on which the store could be built within the city centre. The reasoning behind such a policy was to give effect to the sequential approach for site selection for new retail developments.
Tesco further argued that the planning authority had wrongly attached a different meaning to the statement, a meaning that in their view was not plausible. Tesco challenged the decision of the local authority on the basis that the planning authority failed to fully understand the policy and had erred in law.
Specifically, Tesco highlighted that the planning authority had interpreted the word "suitable", to mean "suitable for the development proposed by the applicant", which Tesco challenged could more accurately be interpreted as "suitable for meeting identified deficiencies in retail provision".
In deciding this case the Supreme Court considered a number of points including:
- What approach should be taken when interpreting the policies and principles set out in the new National Planning Policy Framework (NPPF) against existing development plans;
- To what extent should the sequential test be applied; and
- How the policy in question should be interpreted.
The Supreme Court dismissed Tesco's appeal. Firstly they stated that any policy statement included in the NPPF guidelines should be, as stated by Lord Reed, "interpreted objectively in accordance with the language used, and read in its proper context". Therefore objective, not subjective, interpretations should be made to interpret the clear or natural meaning of a statement.
Although this approach was considered necessary by their Lordships to maintain consistency in an area of discretionary power they acknowledged the need to maintain flexibility and stated: "Such policy statements are not to be treated as contractual or statutory provisions, a development plan does have legal effect but allows planning authorities a jurisdiction to exercise their judgement, judgement that should only be challenged where they appear irrational or perverse."
The Supreme Court found that a question such as whether "suitable" referred to the suitability of one purpose or another was not a question of planning judgement. Instead it is a question of textural interpretation, an answer only reached by construing the language in its context.
The Supreme Court found in favour of the planning authority and held that they were correct to proceed on the basis that "suitable" meant "suitable for the development proposed by the applicant", given that the natural reading, or plain meaning of the sentence was the most logical conclusion to reach.
The Supreme Court further held that when looking at the sequential test, the local planning authority should restrict it's attention to sites that suits the developer's scheme and not a different, invented, version of the scheme.
John Bosworth is a partner at Ashfords. He can be contacted on 01392 333842 or by This email address is being protected from spambots. You need JavaScript enabled to view it..