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Court of Appeal provides clarity on ‘up to’ outline planning permissions but blurs the distinction between policy interpretation and its application

Every so often a case comes along which settles several points all in one go. R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 is one such. It is therefore worth filing away for use when one of those points comes up.

It is common practice for outline applications for residential development to seek permission for 'up to' a stated number of dwellings. What does the LPA have to engage with at the outline stage in terms of the quantum of development and what can it safely leave to be settled at reserved matters? This case addresses that issue, and holds that the reserved matter of 'scale' cannot be used by the LPA to reduce the maximum number for which outline permission has been granted.

Since the Supreme Court decisions in Tesco Stores Ltd v Dundee City Council (2012) and Suffolk Coastal District Council v SSCLG (2017), there is said to be a sharp distinction between what a policy means (which is a matter for legal interpretation by the Courts) and how a policy is applied to the facts of an individual case (which is a matter of planning judgment for the decision maker). Only the former can provide a legal ground for challenge, in the absence of an irrationality claim.

The High Court has suggested that a misinterpretation case will normally require the claimant to show how the language adopted by the decision maker in relation to the policy departs from the correct interpretation (see Barker Mill Estates v Test Valley BC (2016)).

However, the Court of Appeal has now quashed a planning permission on the basis of policy misinterpretation simply because of the result reached rather than because of any expressed misinterpretation of the policy in question. This appears to blur the distinction between interpretation and application.

Further details are provided in the commentary here.

Michael Bedford QC is a member of the Planning Team. If you have any questions or need more information about this case please contact clerks@cornerstonebarristers.com.