Tesco v Dundee - a Retrospective and Implications for SPP and LDPs

Robert Sutherland, AdvocateTerra Firma Chambers

Interpretation of Policy

Tesco v Dundee City Council, 2013 SC (UKSC) 278•“Planning authorities do not live in the world of Humpty Dumpty”

•Policy statements should be interpreted objectively in accordance with language used, in context, but not as if they are contracts or statutes

Interpretation of Policy• An error in interpreting policies will only be

material if there is a real possibility that the determination might otherwise have been different

• “suitability” and the real world – developer’s proposal and whether it shows proper application of sequential approach, not planning authority’s view of alternatives; see R (ex p.) Zurich Assurance Limited v North Lincolnshire Council, [2012] EWHC 3708 (Admin)

Any Policy?• Jaytee (Rainton) LLP v Secretary of State for

Communities and Local Government, [2013] EWHC 2835 (Admin) – Department of Transport Circular (provision of motorway service areas)

• Cotswold DC v SSCLG, [2013] EWHC 3719 (Admin); R (on the application of Hunston Properties Limited) v SSCLG, [2014] JPL 599 - National Planning Policy Framework

Any Policy?

• Re Department of the Environment, [2014] NIQB 4 – Departmental Planning Policy Statement

• R. (on the application of Cherkley Campaign Ltd) v Mole Valley DC, [2014] EWCA Civ 567 – cannot apply a criteria which is in the supporting text, but not in the Policy itself

Interpretation v Application

• Lord Reed at paragraph 21 of Tesco v Dundee – identify what policy means (legal question) before deciding how to apply it (planning judgement)

• R. (on the application of Cherkley Campaign Ltd) v Mole Valley DC, [2014] EWCA Civ 567

• Islington BC v Secretary of State for Communities and Local Government, [2014] EWHC 62 (Admin)

Interpretation v Application

• Islington BC v Secretary of State for Communities and Local Government, [2014] EWCA Civ 378– based on the wording of the policy, no room

for exercising a planning judgement– Court looked at supporting text to the Policy,

and the evidence base assessment used to help formulate the policy

Any limits?

• Tesco Stores Ltd v Secretary of State for the Environment, [1995] 1 WLR 759 – courts will only interfere in planning judgements if they are Wednesbury irrational

• “re-writing” policy by interpretation?

Tesco v Dundee - a Retrospective and Implications for SPP and

LDPs

Robert Sutherland, Advocate

Terra Firma Chambers

Tesco v Dundee - a Retrospective and Implications for SPP and

LDPs

Robert Sutherland, Advocate

Terra Firma Chambers