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Council Victory in Cherkley golf course appeal

The first instance judgment was widely publicised and attracted little adverse comment from legal commentators. The Judge dealt with the defence arguments in robust terms and the approach to the challenge to local authority decision making could be classified as interventionist. Therefore the judgment of the Court of Appeal warrants careful reading, simply in terms of the particular facts of the case. However, the judgment, given by Richards LJ, is worthy of note for a number of important points of principle.

First, he provided very useful guidance on the approach to the development plan and the role policy plays within it. Conformity with policy (or otherwise) is what is important, not the surrounding text. In paragraph 16 he stated that "... when determining conformity of a proposed development with a local plan the correct focus I son the plan's detailed policies for the development and use of the land in the area." The supporting text is relevant to interpretation of the policy but is not policy itself and does not have the force of policy. Supporting text cannot operate independently to impose a policy requirement that is not within policy. Lest there was any doubt as to the application of section 38(6) of the Planning and Compulsory Purchase Act 2004, he concluded that "I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text".

Not only, in the words of Lord Reed in Tesco v Dundee, do planners not live in the world of Humpty Dumpty and they cannot make a plan mean what they would like it to mean but in the real world wording outside identified policies cannot be elevated into a freestanding policy requirement as that is inconsistent with the whole structure of the development plan process.

Secondly, he provided guidance on what is "saved" when an old local plan otherwise ceases to have effect. Although the 2004 Act refers only to policies remaining in force, not only the policies are saved but any supporting text relevant to the interpretation of the policy is also "saved". The important point he identified was that the policy should continue with unchanged meaning and effect until replaced and for that to occur anyone interpreting a policy needs to have regard to its supporting text, see paragraph 18.

Thirdly, in paragraph 28 he provided some guidance on the concept of "need", even though on his approach it formed no part of any policy requirement. Importantly, he accepted that "need" is a protean word and has to be interpreted in context, in line with Lord Reed's approach in Tesco v Dundee. It is capable of encompassing necessity at one end of the spectrum and demand or desire at the other. In the particular context of the case before him, he accepted it was used in a broad sense.

Fourthly, he reiterated that matters of planning judgment are for the decision maker – trite law – but reiterated how difficult it is to establish such a judgment is perverse, particularly when dealing with matters of subjective impression such as impact on landscape. Whilst, implicitly at least, he appears to have accepted that if all the expert evidence was one way a judgment the other might be capable of being termed perverse, in the case before him that was not the position. There was expert opinion supporting both sides of the argument and the planning officers had indicated that there was a "balance" to be struck. In short, the Court of Appeal adopted a less interventionist approach than did the Judge at first instance.

Fifthly, and related to the last point, he did not consider development that would involve change and mitigation inconsistent with a policy requirement for conservation and enhancement, see paragraph 56. Again, Richards LJ has taken a pragmatic line that it is the overall assessment that matters in the application of a policy that requires such judgments to be made.

Sixthly, and lastly, in terms of the now repealed requirement for reason for the grant of a permission, and particularly in regard to reasons for finding exceptional circumstances justifying development in the Green Belt, he re-affirmed the approach he had taken in the Telford Trustees v Telford and Wrekin Council and that reasons did not have to be given for rejecting objectors' representations or reasons for reasons. As to the observations in Siraj, he approved the recent decision of Burnett J in Scottish Widows plc v Cherwell District Council that fuller reasons are not always necessary when a committee disagrees with an officer's report. What will be needed will vary with the circumstances. He described the reasons given as "exceptionally lengthy" and they do contrast favourably with many of the other reported cases, where the reasoning was far thinner if not mistaken or non-existent, see paragraphs 70-72. His approach is still of relevance as in EIA cases there is still a duty to provide reasons, see reg. 24(1)(c)(ii) of the 2011 EIA Regulations. He was content to determine the case on the basis that no higher standard was required under those Regulations as under the now repealed provisions of the Development Management Procedure Order but the contrary was not argued.

James Findlay QC acted for Mole Valley DC.

Please click here to see the full judgement.