Applications for Planning Permission

April 25th, 2019

In Gladman Developments Ltd v Canterbury City Council (2019) EWCA Civ 669, in dismissing an appeal from Dove J, Lindblom LJ, at paragraphs 21/23, restated the correct approach to determining an application for planning permission.  Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination to be made “in accordance with the [development] plan unless material considerations indicate otherwise”. The development plan thus has statutory primacy, and a statutory presumption in its favour – which government policy in the NPPF does not.

Under the statutory scheme, the policies of the plan operate to ensure consistency in decision-making. If the section 38(6) duty is to be performed properly, the decision-maker must identify and understand the relevant policies, and must establish whether or not the proposal accords with the plan, read as a whole. A failure to comprehend the relevant policies is liable to be fatal to the decision.  If the relevant policies of the plan have been properly understood in the making of the decision, the application of those policies is a matter for the decision-maker, whose reasonable exercise of planning judgment on the relevant considerations the Court will not disturb.   The interpretation of development plan policy, however, is ultimately a matter of law for the Court. The Court does not approach that task with the same linguistic rigour as it applies to the construction of a statute or contract. It must seek to discern from the language used in formulating the plan the sensible meaning of the policies in question, in their full context, and thus their true effect. The context includes the objectives to which the policies are directed, other relevant policies in the plan, and the relevant supporting text. The Court will always keep in mind that the creation of development plan policy by a local planning authority is not an end in itself, but a means to the end of coherent and reasonably predictable decision-making, in the public interest.

Floyd LJ (paragraph 46) and Sir Terence Etherton MR (paragraphs 47-62 inclusive) agreed.

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