‘In accordance with the development plan’: a question of judgment or interpretation?

06 May 2020

Planning and Environment

By Robert Williams

The recent Court of Appeal judgment in Cornwall Council v Corbett has generated much comment in the last month. And not just within Chambers (members of the Cornerstone Planning Team represented both sides – a sure fire way to ensure that we are able to claim victory!). The decision appears to have hit a nerve with the wider planning community: reminding us that a breach of a particular development plan policy – even a policy expressed in very trenchant terms – does not necessarily equate to a failure to accord with the development plan as a whole. Cue the sound of much back-peddling, as planning proofs are re-written, statements of common ground renegotiated.

The main principles relevant to determining whether a proposal is “in accordance with the plan” (referred to in this article as the ‘accordance question’) can be shortly stated:

1. The section 38(6) duty can only be properly performed if the decision-maker establishes whether or not the proposal accords with the development plan as a whole: BDW Trading Ltd at [21].
2. Development plan policies can “pull in different directions”, i.e. some may support a proposal, others may weigh against it: Rochdale at [48].
3. A decision maker is required to assess the proposal against the potentially competing policies and then “decide whether in the light of the whole plan the proposal does or does not accord with it”: City of Edinburgh at p1459D-F.
4. This is not a mathematical or mechanical exercise. It is not a question of counting: Dignity Funerals at [68]-[70]
5. This exercise calls for a series of judgments to be made, which may include determining the relative importance of the policy, the extent of any breach and how firmly the policy favours or set its face against such a proposal: Rochdale at [51].

In Corbett the Council had concluded that a tourism proposal would cause ‘slight/moderate’ harm to an Area of Great Landscape Value (AGLV). This resulted in a breach of Policy 14 of the Local Plan which provided that “Developments will not be permitted that would cause harm to the landscape, features and characteristics of [AGLV]“. However, the Council gave ‘limited weight’ to the breach of Policy 14 and, having had regard to policies in the Local Plan which were strongly in favour of the proposal, concluded that the proposal would be in accordance with the development plan as a whole.
At first instance the judge considered that the accordance question turned on the proper interpretation of the Local Plan. He said:

22. If saved Policy 14 means what it says, the plan would require the application to be refused. In these circumstances a decision granting planning permission would be a decision made not in accordance with the plan.”

And went on to conclude that:

28. [The] development plan read as a whole, including saved Policy 14, does not permit a development that would cause harm to the landscape, features and characteristics of an AGLV covered by that policy. It follows that a determination granting planning permission for such a development would be a determination not in accordance with the development plan.”

The Court of Appeal disagreed. They concluded that, despite the trenchant terms of the policy, conflict with Policy 14 did not necessarily deprive a proposal of the ‘statutory presumption in favour of the development plan’. Once the relevant policies were correctly understood, determining whether the proposal was in accordance with the development plan as a whole was “classically a matter of planning judgment for the council as planning decision-maker” at [45].

This conclusion, perhaps, should not have come as much of a surprise. As Lindblom LJ explained, the outcome of Corbett lay “in a straight forward application of the principles in the authorities” at [34].

However, the Court of Appeal’s judgment begs the question: is it possible for individual policies in a development plan to dictate whether a proposal is in accordance with the plan as a whole?

Lindblom LJ’s judgment certainly conceived of the possibility that appropriately drafted policies could have such an effect, albeit he concluded that they did not in this instance noting that:

[N]owhere is it stated, or implied, that any conflict with Policy 14 will necessarily lead to a proposal being found to be not in accordance with the development plan as a whole, or to a refusal of planning permission. And in my view there can be no justification for reading words into Policy 14 that are not there“at [41].

Nor is the decision in Corbett the first time that it has been suggested that the accordance question is capable of being determined by the proper interpretation of the development plan. This approach was also taken in Crane, Canterbury City Council, and Chichester District Council, a trio of cases concerning neighbourhood plans. In Canterbury, as it had in Crane, the Court found that the “natural and necessary inference” of the relevant policies of the neighborhood plan, read sensibly and as a whole, was that housing development of the type proposed “could not be regarded as in accordance with the development plan” but “would be in conflict with the plan, because it would be contrary to the comprehensive strategy for housing development” (at [34]). In Chichester the outcome was different, but the approach – treating the accordance question as being resolvable by interpretation – was the same.

In none of these cases did the court specifically address whether the wording of development plan policies could determine the answer to the accordance question (the focus in those cases being on whether the proposals were in conflict with the neighbourhood plans, despite there being no conflict with any particular policy) . Yet this was the very issue raised in Corbett – the central argument being that a proper interpretation of the development plan, including Policy 14, dictated a conclusion that the proposal was not in accordance with the development plan as a whole. And while the Court rejected that argument on the facts of the case, it did entertain the possibility that, if appropriately drafted, policies within a development plan could dictate whether a proposal was in accordance with the plan as a whole.

The correctness of this approach must be doubted. Even if a policy were to expressly state that conflict with it would render a proposal in breach of the development plan as a whole, it must always be open to a decision-maker to conclude otherwise. The breach of that policy may be very slight; the policy may have become out-dated; and/or there may be strong support for the particular proposal from other policies. Moreover, it is at least arguable that the suggestion that policies can dictate the outcome of the accordance question is contrary to the basic public law principle that policies cannot fetter the discretion of decision-makers.

As Sullivan LJ recognised in Rochdale the specific wording of the policy may, of itself, be a relevant – and perhaps very weighty – consideration in determining whether there is accordance with the development plan as a whole. But the terms of the policy cannot dictate the outcome of the accordance question. Ultimately, this must always be a matter of judgment for the decision-maker, and not one determined solely by interpretation.

James Findlay QC acted for Cornwall Council. Dr Ashley Bowes acted for Mr Corbett. The views expressed in this article are the author’s alone.

Cases cited:

  • R (on the application of Corbett) v Cornwall Council [2020] EWCA Civ 508
  • BDW Trading Ltd. v Secretary of State for Communities and Local Government [2016] EWCA Civ 493
  • R v Rochdale Metropolitan Borough Council, ex parte Milne [2000] EWHC 650
  • City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447
  • Gladman Developments Ltd. v Canterbury City Council [2019] EWCA Civ 669
  • Chichester District Council v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 1640
  • Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin)
  • Dignity Funerals Limited v Breckland District Council [2017] EWHC 1492 (Admin)