Thurston Neighbourhood Plan in Court of Appeal tomorrow

The Court of Appeal (Lewison, Singh and Whipple LJJ) will hear tomorrow Mid Suffolk Council and Bloor Homes' appeals against the quashing by the High Court of planning permission granted by the Council to Bloor for over 200 houses outside Thurston village's settlement boundary. The central issue is the meaning of Policy 1 in the Thurston Neighbourhood Plan which stipulates that “new development in Thurston Parish shall be focused within the settlement boundary”.

The Judge found that the proposals did conflict with the Plan and that Council officers' advice to the contrary had materially misled Councillors both in making their decision and in assuming that the “tilted balance” in para. 11 of the NPPF applied to the proposals, see at [2022] EWHC 352 Admin.

The Court of Appeal hearing will be live streamed from 10:30am tomorrow, 18 October 2022, see at https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

The Council and Bloor are appealing on essentially the same grounds, namely, that the Judge erred in law:

(1) in his construction of Policy 1 in the Neighbourhood Plan; (and consequently)

(2) in concluding that the tilted balance did not apply.

The Council also criticises the judge’s conclusion on the application of para. 14 of the NPPF.

In responding to the appeal, the Parish Council will be maintaining that the Judge’s decision was correct in all respects (and notes that the Council’s additional point on para. 14 was not essential to the Judge’s conclusions).

This is a summary of Parish Council’s submissions:

1. After hearing full argument and construing Policy 1 in its appropriate context, the Judge agreed with the Parish Council’s submission that, on its literal wording (“new development… shall be focused within the settlement boundary”) any development outside the boundary was contrary to the policy and the Spatial Strategy in the Plan [CB5/64-65] paras. 72-75.?This construction is reinforced by para. 4.5 of the supporting text to the policy: “the general approach in the Thurston Neighbourhood Plan is that growth will be focused on the sites with planning permission (which are located within the amended settlement boundary) and on small scale infill sites within the settlement boundary”?
2. Compare Gladman Developments Ltd v. Canterbury CC [2019] EWCA Civ 669 in which policies providing that development would be permitted on allocated sites and on certain other sites in specified circumstances were construed so that a proposed development on a greenfield site outside the village boundary was contrary to them; “proposals without their explicit support were not in accordance with them”, per Lindblom LJ at [35].
3. While construction of policy is a matter of law for the court, there is no legal basis on which the Judge’s construction of Policy 1 can be faulted in the contextual background against which he construed it.
4. For the avoidance of doubt, and contrary to what is asserted by Bloor to the effect that the question whether the policy was breached was a matter of “planning judgement” or involved a “planning balance”, the Parish Council maintains that the Council erred in point of law as the Judge concluded.
5. All the parties are agreed that the Judge’s conclusion on the application of the tilted balance was bound up with his conclusion on the construction of Policy 1.?Since the Judge’s decision was demonstrably correct on that question, it follows that he cannot have erred on the question of the application of the tilted balance.?As the Judge said at para. 87 of his judgment: “It was of particular importance to the proper exercise of that overall judgment in accordance with the approach approved by Dove J in Wavendon that planning officers should found their own judgment and their advice to the Committee on a correct interpretation of Policy 1 of the Neighbourhood Plan”.
6. The Judge’s conclusion on the application of the Wavendon principle cannot be faulted on any legal grounds.
7. In relation to para. 14 of the NPPF, the Judge also accepted the Parish Council’s submission that the Council’s conclusions on the application of para. 14 were vitiated by their misconstruction of Policy 1, see para. 91.?In the light of the above, the Judge was fully justified in doing so.?In any event, however, the Judge’s resolution of that debate was not essential to his decision, see para. 89, and so criticism of his conclusions in respect of it cannot advance the Council’s case in their appeal.

Meyric Lewis is resisting the appeal for Thurston PC instructed by Bob McGeady of Astons Legal