Johnson Brothers (A Firm) v Secretary of State for Communities & Local Government

This is a renewed application for permission to appeal, permission having been refused on the papers by Elias LJ. The applicant seeks permission to appeal from a judgment of HHJ Farmer QC sitting as a deputy High Court judge.

This all arises from a challenge by the applicant under section 288 of the Town and Country Planning Act 1990 to dismissal by an inspector of the applicant’s appeal against a refusal of outline planning permission for new B8, B2 and B1 uses on land which forms part of a former World War II airfield in the Vale of Evesham. On that area there are already some employment uses already existing, but some of the land remains undeveloped. The whole of the appeal site, however, falls within a designation on the local plan proposals map showing that it falls within a policy known as ECON1. That policy is entitled Protection of Existing Employment Land, and the inspector interpreted this as a policy preventing change of use to non-employment uses, what in effect he called a protective designation, rather than an allocation for new development. So while he found that the proposals did not themselves conflict with policy ECON1, he also held that that policy did not tell to any great extent in their favour.

He also found various other objections to the proposed development. But the policy point is the point which is put by Mr Dove QC on behalf of the applicant at the forefront of his argument this morning. I do not propose to read out the full text of that particular policy but I am in the event persuaded that there is a properly arguable point here to the effect that the inspector adopted an incorrect interpretation of policy ECON1. Part of Mr Dove’s argument relates to the proper approach as a matter of law to the interpretation of planning policy in the light of such decisions as Raissi [2008] EWCA Civ 72, which it is contended along with other decisions has modified the approach to be adopted to the interpretation of policy from that which was set out in the leading case in planning terms of the R v Derbyshire CC ex parte Woods [1997] JPL 958. For what it is worth, my own view is that where planning policies are concerned, Woods is still good law. Nonetheless I am persuaded that it is properly arguable that, when one actually looks at the policy ECON1 in the present plan, the inspector may have gone wrong in the interpretation which he adopted, and that he adopted a meaning which the policy is not reasonably capable of bearing.

Certainly the policy on the face of it is a protective policy, but it seems to me to be properly arguable that one only protects land from change of use to a non-employment use if you wish to see that land in the first place be retained for employment uses. That in itself would imply a certain amount of support for a proposal that that land should then be so used, insofar as it is not already used for employment purpose. On that basis I am persuaded that there is a realistic prospect of success in this case.

I do not think very much of another point which is raised in the grounds of appeal which concerns the procedures adopted by the inspector at the inquiry, and I am not minded to grant permission on that aspect of the case, and I see Mr Dove indicating he does not wish permission to be granted on that. But on the policy point there is a properly arguable case here. I therefore grant permission to appeal. This should be heard by a court which may consist of two Lords Justices of Appeal and a High Court judge, but in any event it would be very desirable that someone with planning experience should be part of the constitution.