Girlfriend in a comma

 A recent Planning Court ruling sets out why punctuation, spelling and grammar matter, writes Simon Ricketts.

I know, it’s really serious (© Morrissey, Marr)

Our version of eats, shoots and leaves might be, for instance:

Stop, plan!

vs.

Stop plan!

Or perhaps ask yourself whether you follow your principles, or your principals; or whether you effect better outcomes, or affect them; or whether this issue needs an enquiry, or an inquiry?

Whilst bloggers are not bound by the strict rules of spelling, punctuation and grammar, the grown-ups in the planning system should be: after all (controversial thought), isn’t the modern planning system more about words than about plans?

These thoughts were sparked by Nicola Gooch bringing to my attention Moore v Somerset Council (Jay J, 12 October 2023) – maybe to deflect me from writing about more topical issues (do read her latest post on what has happened to the Lords’ amendments to the LURB now it is back in the Commons).

Moore was just the latest example of litigation spawned by poor drafting, which could have been resolved by way of the introduction of two commas into a local plan policy.

The dispute was all about the meaning of the fifth indent to this policy in Mendip District Council’s local plan:

“Town centre redevelopments, including Saxonvale and, in the longer term, the Westway centre, (as identified in the Policies Map as CP6C), will collectively deliver:

1. a medium scale foodstore including only an ancillary element of non-food goods – to supplement limited town centre choice and in turn draw back trade from out of town large format foodstores.
2. Up to 7,000 sqm of non-food retail space in a range of unit sizes …
3. Residential uses and uses that enhance the attraction of the town to visitors and as an evening destination …
4. Creative and imaginative public realm improvements as well as new urban spaces which integrate new development areas with the town’s historic centre and which also incorporate and enhance the River Frome as a feature within the town centre.
5. 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.”

(my emboldening).

Did this mean that town centre developments were to deliver at least half of the 11,500 sq m of flexible office/studio space identified elsewhere in the plan as “town centre” uses (NB to add to the confusion, that figure was in itself an error, the correct figure referred to elsewhere in the plan being 11,850 sq m)? Or did it mean that this floorspace needed to be delivered within the Saxonvale area of the town centre? And what was the relevance of the reference to FETE, an educational establishment?

The claimant was seeking to challenge a planning permission for a mixed use development at Saxonvale. He contended that the council had wrongly concluded that the policy required the floorspace to be delivered in the town centre generally rather than at Saxonvale.

Jay J was not impressed with the drafting: “[Counsel for Somerset (the successor authority to Mendip)) described [the fifth indent] as “ambiguous” but a more accurate description would be that it is poorly drafted. It would certainly benefit from the insertion of punctuation.”

“It is not just the absence of punctuation that bedevils this provision. The FETE educational 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.”

After detailed submissions from both sides, the judge allowed the claim, in essence concluding that the indent should be read as follows:

“o           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”

He accepted that putting the reference to FETE in the same sentence as the flexible office/studio space was still “uncomfortable” but I read the judgment as a valiant attempt at making the best of a bad job!

All credit to local plan inspectors who raise ostensibly nitpicking points on policy wording during local plan examinations. If that isn’t done, this is what happens.

The traditional approach to legal drafting, of course, was to avoid the use of punctuation, so as to impose the discipline of ensuring that the meaning is sufficiently precise without recourse to punctuation that so often can go awry. But with such an approach, text can become overly dense and difficult to understand. Whether or not punctuation is used (and not to use it nowadays comes across as wilfully antiquated), the important thing is for text in plans, agreements, permissions and conditions to be stress-tested. Is the intended meaning unambiguous? It is interesting how many cases reach the Supreme Court which revolve around one phrase, for instance:

Trump International Golf Club v the Scottish Ministers (Supreme Court, 16 December 2015): the requirement, within a condition, for the applicant to submit a construction method statement for approval, but with no express requirement subsequently to comply with the statement once approved.

Suffolk Coastal District Council v Hopkins Homes (Supreme Court, 10 May 2017): “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

DB Symmetry v Swindon Borough Council (Supreme Court, 14 December 2022): “The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.”

Do you want to know one of my other bugbears? The use of the slash, as in “/”. Does it mean “or”, “and” or “and/or”? Usually its use denotes that the writers are hedging their bets. The Court of Appeal recently considered the meaning of “live/work” units, in the context of a lease, in AHGR Lyd v Kane-Laverack (21 May 2023). Dingemans LJ considered the circumstances of the grant of planning permission for the unit and concluded that the phrase “live/work” meant “live and/or work”: “the relevant plan which formed part of the planning permission showed the whole of the premises shaded as “live/work” which meant that there was no sub-division imposed by the planning permission into separate “live” or “work” areas. This meant that it would be for the leaseholder to determine where to live and where to work. Leaving such matters to the discretion of the leaseholder suggests a permissive approach to the phrase “live/work” meaning that the leaseholder might decide only to live at the premises, or only to work at the premises, or to do both in parts of the premises at their choosing. Thirdly because a leaseholder might be served with enforcement notices and might ultimately be the subject of criminal proceedings for breach of planning permission, then if it was intended that lawful use of the premises required both living and working, that would be spelled out using language that was clear and unambiguous.”

And don’t get me started on the Oxford comma.

Simon Ricketts is a partner at Town Legal. This article first appeared on his Simonicity blog.