The basics #10 - what words mean
Another week goes by in planning law and policy, a page turns, and the news keeps on rolling in. We’re 1 year into this blog now. I keep expecting the news to stop. But it never has. The Government’s now responded to further bits of the August 2020 “Changes to the current planning system” consultation (the first bit of their response came last year, aka the strange death of the mutant algorithm). Raising the small sites threshold for affordable housing? Out. Extending the permission in principle regime (more of which here)? Not for now. First homes? Very much in. And they’ll replace the current national policy on entry level exception sites. This is important stuff, and there’ll be time to talk it through - in particular when an upcoming Written Ministerial Statement sets out the first homes policy in a bit more detail.
So, for now, why not take a load off. Forget about policy reforms (gasp!). Yes. Just for 5 minutes. Why not zoom out with me to have a short think about some good old-fashioned #planoraks basics. How do we decide what words mean?
Planning’s a practical job. You need a ruler, a camera and a decent OS map. You need an umbrella and a sturdy pair of walking boots. But you also need a dictionary. Because our planning system is built out of words. Laws, policies, guidance, codes - words, words, and more words. Sometimes too many words. All of those words need interpreting. So who does that interpreting, and how?
Here’s a skip through some of the law for you (the pre-2000 cases are all too old for Bailii hyper-links ☹️):
As far back as 1986, Mr Justice Woolf (who went onto become a Law Lord, Master of the Rolls and Lord Chief Justice so… you know… he knows his onions) said in a case called EC Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P. & C.R. 86 that as Government planning policy in national circulars had to “speak for itself”, then “its interpretation remains a matter for the court”.
On the other hand, in the 1990s, (see for example Northavon D.C. v. Secretary of State for the Environment [1993] J.P.L. 761 and R. v Derbyshire County Council, ex p. Woods [1998] Env. L.R. 277) the courts explained that often policy language isn’t readily susceptible to precise legal definition. Which means that whether a scheme meets the relevant policy tests is normally a matter of fact or degree and planning judgment - not law. If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law.
That’s no small matter - this planning judgment vs. question of law distinction couldn’t be more important, because as another one of our all-time great judges Lord Hoffmann said in the Tesco Stores [1995] 1 W.L.R. 759 case:
“This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
If the meaning of planning policy is a question of judgment, that puts the ball in the court of decision-takers. If it’s a question of law, that’s for judges. So. Which is it?
That takes us back to March 2012 - a seismic month for #planoraks:
On 21st March, Lord Reed confirmed that the interpretation of planning policy is a question of law (i.e. for us lawyers), not one of judgment (i.e. for you planners): Tesco Stores Ltd v Dundee City Council [2012] UKSC 13. Probably the most important planning case of the previous decade. Lord Reed said that:
The meaning of the plan is NOT something each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality.
On the contrary, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
Lord Reed famously summed it up in this way: “planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean”.
On the other hand, he told us planning policy should not be construed like a contract or a statute. We have to have an eye on their purposes. Sometimes policies are broad and their application requires the exercise of judgment. In those cases, judgments of LPAs or the Secretary of State can only be challenged if irrational or perverse - see the 1995 Tesco case above.
On 27th March, the Government published the first NPPF, in which the “golden thread” - the “presumption” in favour of sustainable development - was crystallised at paragraph 14 into something we're now 9 years into calling “the tilted balance” - for the latest thinking on that see here. Innocuous phrases like “where the development plan is absent, silent or relevant policies are out-of-date” or “policies for the supply of housing" generated reams of High Court litigation. And led to the what the Court of Appeal now regularly deprecate as the “over-legalisation” of the planning system and what are supposedly its very simple precepts.
Since that March 2012 bumper month, which led to a series of bumper years for Tesco v Dundee-style interpretation challenges in the planning courts, our judges have been eager to roll back a bit from the idea that Lord Reed was passing the baton exclusively to lawyers to work out what policy means. The modern leading text on this area was the Hopkins Homes case in the Supreme Court (full disclosure: I acted for Hopkins Homes). Lord Carnwath went over Tesco v Dundee, but added his own caveats which are now regularly brought up and relied on by judges in the Planning Court. So worth reading this bit with some care:
“25. It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. Even where there are disputes over interpretation, they may well not be determinative of the outcome. (As will appear, the present can be seen as such a case.) Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the Planning Inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local. As I observed in the Court of Appeal (Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2009] PTSR 19, para 43) their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence (see Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678, para 30 per Lady Hale.)
26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”
And those are the paragraphs which have set the tone for the contemporary caselaw. And as a result, it must be said, it’s pretty darned tricky to win cases on Tesco v Dundee-style interpretation points. Yes, it happens! But it’s tricky. To get a flavour for why that is so, have a look at the recent Gladman judgment on the “tilted balance” where Sir Keith Lindblom reminded us that:
“(1) Policy is not statute, and ought not to be construed as if it were. As Lord Carnwath observed in Hopkins Homes Ltd. (at paragraph 24), not all planning policies lend themselves to a rigorous judicial analysis. Where they do require interpretation, this should be done objectively in accordance with the language used, read in its proper context (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983, at paragraphs 19, 21 and 35). A sensible approach should be adopted in seeking the true sense of the policy in question. The courts should not encourage unmeritorious claims based on intricate arguments about the meaning of policy. They should resist the over-complication of concepts that are basically simple (see East Staffordshire Borough Council, at paragraph 50).
(2) The interpretation of policy is a quite different exercise from judging its lawful application (see Hopkins Homes Ltd., at paragraph 26). Construing policy is, in the end, a task for the court, but the application of policy is for the decision-maker and may be challenged only on public law principles, and not on the planning merits (see East Staffordshire Borough Council, at paragraph 9). Subject to the limits of rationality, it is for the decision-maker to judge the matters to be taken into account in applying planning policy (see the judgment of Lord Carnwath in R. (on the application of Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] PTSR 221, at paragraphs 30 to 32, and 39).”
So there we have it. The story is of a judicial attitude which has rolled back considerably from the High Court jamboree of cases on interpretation of policy brought about by Tesco v Dundee back in 2012. In the end, planning policies are made of words. Of course, the courts still have the power they’ve had for decades to give us a final view on what words in planning policies mean. Sometimes the power is used to overturn planning decisions. But not often. Because words in planning policy shouldn’t be interpreted with too many bells or whistles. Because the courts have become very unimpressed with what Sir Keith has called many times “excessive legalism” infecting the planning system. So keep it simple. And they’re very anxious that challenges to questions of judgment aren’t dressed up as points about interpretation. And if it’s a judgment call, well judges will normally steer well clear.
Stay well #planoraks. Enjoy your chilly outdoor pub visits! And keep on planning.
