Council wins High Court challenge to interpretation by planning inspector of its Core Strategy amid concerns over wider consequences

Stratford-on-Avon District Council has succeeded in the High Court in overturning a planning inspector’s decision to grant an appeal, and has been awarded costs of £15,298 against the Secretary of State for Levelling Up, Housing and Communities.

It argued the inspector erred in his interpretation of its local plan and misinterpreted two policies. 

The council's concern was said to be not simply the fact that permission had been granted in relation to the specific application (although it stood by the correctness of its decision to refuse planning permission) but that the inspector had misinterpreted its Core Strategy in a way which would have wider consequences.

The Secretary of State sought to uphold the inspector's interpretation and, were that to fail, asked HHJ Worster - sitting as a judge of the High Court - to exercise its discretion under section 31(2A) of the Senior Courts Act 1981 and rule that the conduct complained of would not have made a significant difference to the outcome of the decision.

The background to the case was that developer JP Dudfield applied in October 2019 for outline planning permission for a site in Binton - open countryside for planning purposes - to build four homes in place of the storage and maintenance for motor racing vehicles then carried on there.

Stratford-on-Avon refused on the basis that it failed to comply with policies in its Core Strategy.

This was because development in the countryside was restricted to small scale community-led schemes which meet an identified need, and even if it had conformed to that the proposal was not one of the identified forms of acceptable development.

Officers said future occupiers of the development would be wholly reliant on cars to access services and be unacceptably remote from the support of a sustainable community.

In Stratford on Avon District Council v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 445 (Admin) HHJ Worster said the essence of the council’s first ground was that the inspector erred when he gave negligible weight to a policy because it did not refer to proposals in the open countryside and that “on a proper interpretation of the policy he should have concluded that the proposal conflicted with this policy and was not in accordance with the development plan”.

Its second ground was that the inspector erred when he decided that the list in the policy of what was acceptable in principle was not a closed list, and went on to consider the application under the ‘residual’ category when he should have concluded it did not l accorded with the policy,

The judge said: “I am not construing a commercial contract. I have to read the words of these policies sensibly and in the context of their objectives…I have concluded that the [council’s] construction is the right one.”

He said the Core Strategy clearly applied to the entire district and “to turn the point on its head, to exclude the open countryside from the strategic policy which deals with the distribution of development within the district makes no sense.

“That is particularly so when this plan makes repeated reference to protecting the countryside from inappropriate development. There is little point in having a strategic policy for the distribution of development within the district if it is not comprehensive.

“The argument that it merely serves to focus development in these areas runs counter to my reading of it as a comprehensive policy, and significantly weakens the overall effect of the plan.”

HHJ Worster said the policies of the Core Strategy were designed to be comprehensive for the distribution of development and “much of its effect would be lost if proposals for development outside the hierarchy of locations it establishes were not to be treated as contrary to the policy it establishes”.

The council argued it was not possible to say whether the inspector would have granted planning permission in the face of a strong statutory presumption against the proposal had the misinterpretation not occurred.

HHJ Worster said: “I agree with that submission…this is not a case where I can find that it would be ‘highly likely’ that the inspector would have allowed the appeal.”

Mark Smulian