This is an appeal from the order of Supperstone J (reflecting his judgment [2016] EWHC 980 (Admin)) in proceedings brought by the Appellant seeking judicial review of the grant of planning permission by the Respondent (“the Council”) for a development at Teddington Weir, Teddington Lock, Teddington on the River Thames. Teddington Lock is in an area designated as Metropolitan Open Land (“MOL”) and is in a conservation area. The proposed development is for the installation of a 3-turbine hydro-electric generation facility to replace a section of the existing weir. This would involve the construction of a plant room above the turbines. The judge dismissed the claim for judicial review.

The application for planning permission was submitted on 2 September 2014. It came before the Council’s planning committee on 15 April 2015. The Council’s planning officers prepared a report for that committee meeting (“the April report”) which set out a detailed assessment of the application and the policy context, with a recommendation for approval. It is common ground that, so far as is relevant for these proceedings, this report is to be taken to set out the reasons of the planning committee for granting planning permission for the development.

At the meeting on 15 April 2015 the planning committee called for further examination to be carried out, in particular in relation to the question of noise. Those further matters were resolved to the satisfaction of the Council by September 2015 and on 17 September 2015 the planning permission in question in these proceedings was granted.

At first instance and in this appeal the Appellant submits that the Council failed to comply with its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) in that it failed to have proper regard to provisions in the development plan. The Appellant also advanced other grounds below which were dismissed by the judge and in relation to which there is no appeal.

Section 38(6) of the 2004 Act provides that:

In this court, as below, the relevant legal principles in relation to a claim of breach of this duty were not in issue. The judge helpfully sets them out at paras. [18]-[22]:

In the decision of this court in Secretary of State for Communities and Local Government v BDW Trading Ltd [2016] EWCA Civ 493, which post-dates the judgment below, Lindblom LJ helpfully summarised the principles to be derived from the authorities in this way at paras. [20]-[23]:

An officer’s report containing a planning authority’s reasons for granting planning permission is to be read fairly as a whole, focusing on the substance of the matter rather than the form. It is not incumbent on an officer compiling a report for the planning committee of a local planning authority to set out and discuss each policy in turn, like a sort of examination paper. If it appears as a matter of substance on a fair reading of the report that matters relevant to the proper application of policies in the development plan have been appropriately identified and assessed, that will be sufficient. Such reports are to be read against the background that they are written for an informed audience (the planning committee) who may be taken to have a reasonable understanding of, or the means of checking on, the local context and the legislative and policy framework in which the decision is to be taken: see e.g. R v Mendip District Council, ex p. Fabre [2000] 80 P&CR 500, 509; Oxton Farms, Samuel Smith’s Old Brewery (Tadcaster) v Selby District Council (CA, 18 April 1997) 1997 WL 1106 106, per Pill LJ; R (Trashorfield Ltd) v Bristol City Council[2014] EWHC 757 (Admin) at [13] per Hickinbottom J.

The development plan in this case has three relevant elements. First, the London Plan 2015 applies. Most important on this appeal is policy 7.17 in that plan, which provides in relevant part as follows:

Policy 7.17 also appeared in the previous 2011 iteration of the London Plan, with the explanatory text at paragraph 7.56 referring to the then applicable national policy for the Green Belt, contained in PPG2 (now replaced by paras. 79-92 of the NPPF). There is no difference in substance.

In addition, policy 7.4 of the London Plan requires that attention be given to the local character of the area where proposed development is to take place, including such matters as that development “should improve an area’s visual or physical connection with natural features”.

It is also relevant to note that a number of policies in the London Plan contemplate that it will be for local planning authorities in the London area to develop their own local policies to flesh out and give practical effect to statements of policy at a general level in the London Plan: see e.g. policies 5.7, 5.8, 5.12 and 7.4. But this is not a feature of policy 7.17.

Next, the Council’s own Core Strategy forms part of the development plan. Policy CP10 applies to open land and parks, including MOL and provides that the open environment will be protected and enhanced. Policy CP11 provides for protection of the River Thames Corridor in respect of its natural and built environment, including through the Thames Landscape Strategy.

Finally, the development plan includes the Council’s Development Management Plan 2011. Policy DM HD1 deals with conservation areas. It provides:

Policy DM OS2 made provision in relation to MOL as follows:

In addition, policy DM OS 11 provides for regard to be had to the special character of the Thames Policy Area through, among other things, ensuring that development establishes a relationship with the river. Policy DC1 provides for regard to be had to design quality of any proposed development.

National policy on the Green Belt is contained in paras. 79-92 of the NPPF. The policy places substantial constraints on development in the Green Belt in two ways: it provides a very limited definition of what will count as appropriate development in the Green Belt in paras. 89 and 90 of the NPPF and, in relation to inappropriate development (i.e. all other development) it provides that planning permission should be refused unless “very special circumstances” exist in favour of development (para. 87). The first sentence of para. 89 states that, subject to exceptions which do not apply in this case, “A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt.”

The present challenge to the grant of planning permission is not directly based on national policy on the Green Belt, but Mr Lockhart-Mummery QC for the Appellant submits that the strict test for development in the Green Belt is incorporated by reference into policy 7.17 in the London Plan.

The planning application emphasised that the proposed development was in line with development plan policies to promote schemes for renewable energy. It was not suggested that the development could be regarded as falling within the categories of appropriate development as defined in national Green Belt policy in the NPPF; nor was it suggested that this was a case where “very special circumstances” existed to justify the grant of planning permission in accordance with the test in para. 87 of the NPPF. The assumption was that the provisions in the NPPF were not relevant to the application.

Similarly, the representations received from objectors (including the Appellant) did not make reference to the provisions in the NPPF dealing with development in the Green Belt.

The April report listed relevant policies for the benefit of the planning committee at the beginning. All the policies referred to above were listed save for policy CP10 (but this was referred to in terms at paras. 2 and 42 of the April report) and policy CP11 (which was not referred to elsewhere in the report).

The April report provided a summary of the representations in support of the planning application and of the representations in opposition to it. It went on to set out an assessment of the merits of the application. For present purposes, the relevant discussion of the merits of the application was at paras. 42 to 48:

The recommendation in the April report was in these terms:

The assessment and recommendation in the April report remained unchanged in substance when the matter was finally considered and planning permission was granted in September 2015.

There are three grounds of appeal, all of which revolve around a complaint that the Council failed to comply with its duty under section 38(6) of the 2004 Act to take policies in the development plan properly into account. Mr Lockhart-Mummery submits that the Council:

failed properly to take policy 7.17 into account;

failed properly to take policy DM HD 1 into account; and

failed properly to take a range of other policies into account, specifically policies 7.4, CP10, CP11, DM OS11 and DM DC1.

Mr Kolinsky QC, for the Council, says that ground (i) emerged only tangentially and assumed prominence only late in the day in the course of the hearing before the judge. That appears to be the case, but it is not disputed that as events transpired this ground was a live ground of claim before the judge and it is not suggested that it is not now open to the Appellant to maintain it as a ground of appeal.

Mr Lockhart-Mummery made a very broad submission, that the April report did not refer in a meaningful way to the policies set out above because it did not set them out or refer to them in the body of the discussion of the application in the report. I do not accept this argument. The relevant principles governing the approach to interpretation of an officer’s report on a planning application have been referred to above. If, as a matter of substance on a fair reading of the report, a particular policy has been brought into account, that will be sufficient and lawful, even if it is not referred to in terms. But clearly, if relevant policies have been listed in the report for the benefit of members of the planning committee, that will make it easier for the local planning authority to show that such policies have been properly taken into account.

In relation to ground (i), Mr Kolinsky accepts that the proposed development would not have been of a character which fell within the limited categories of appropriate development in the Green Belt as defined in paras 89 and 90 of the NPPF. Therefore, if one were looking at this as an application for development in the Green Belt, the “very special circumstances” test in para. 87 of the NPPF would have been applicable. He acknowledges that the Council did not consider that test in the present case.

However, Mr Kolinsky’s submission is that policy 7.17 of the London Plan allows for the Council, in promulgating its own Development Management Plan, to fill in the detail of what is to count as “appropriate development” in the MOL for the purposes of the application of the Green Belt analogy set out in subsection B of that policy. He submits that the Council did this by way of policy DM OS2 in relation to protection of MOL, and that in para. 45 of the April report in particular it was assessed that on the application of that policy the proposed development could be regarded as “appropriate development”. Therefore, it was not necessary for the Council to consider the “very special circumstances” test for inappropriate development on MOL or in the Green Belt, nor to conclude that that test was satisfied in the circumstances of this case. The judge accepted this analysis.

In my view, it is clear from the paragraphs of the April report set out above, and para. 45 in particular, that the Council’s assessment tracked the policy considerations in policy DM OS2. I consider that it reached the legitimate and rational conclusion as a matter of planning judgment that the proposed development qualified as “appropriate development” in accordance with that policy, in that it was identified as an exceptional case where conditions 1 and 2 set out in DM OS2 were satisfied. Mr Lockhart-Mummery sought to suggest that the proposed development was not in accordance with policy DM OS2 because it was not a small-scale structure. However, non-compliance with policy DM OS2 was not raised as a ground of appeal and in any event, as Mr Kolinsky correctly pointed out, the policy does not require that the proposed development must necessarily be a small-scale structure (see the words: “such as small-scale structures” – my emphasis).

However, in my judgment, Mr Kolinsky’s analysis of the interaction of policy 7.17 and policy DM OS2 cannot be sustained. Policy 7.17, at subsection B, is in clear and unqualified terms. The protection to be afforded to the MOL is to be equivalent to, and no less than, the protection afforded to the Green Belt in national policy. This appears from (i) the opening words (“The strongest protection should be given to London’s [MOL]”); (ii) the fact that “inappropriate development” is a recognised and clearly defined concept for the purposes of the protection of the Green Belt, so that it is natural to read the words used here as a reference to that concept; (iii) the express statement that the protection given under the policy should be “the same level of protection as in the Green Belt” (my emphasis); and (iv) the consideration that the policy in subsection B falls to be interpreted in the light of the commentary in para. 7.56, which states in terms that “The policy guidance of paragraphs 79-92 of the NPPF on Green Belts applies equally to [MOL]”, making clear the intention of cross-reference under the policy to paras. 89 and 90 of the NPPF defining what is to count as “appropriate development”.

Mr Kolinsky argued that subsection B of policy 7.17 meant only that the “very special circumstances” test aspect of the protection of the Green Belt was intended to apply, and not the definition of “appropriate development”. This suggestion cannot stand with the express language used in subsection B and the explanatory text in para. 7.56. Moreover, the argument, if correct, would make the phrase “giving the same level of protection as in the Green Belt” otiose. As I have explained above, national policy on the Green Belt accords it protection by a combination of (a) a restrictive definition of “appropriate development” and (b) a test of “very special circumstances” which has to be satisfied in respect of inappropriate development. Since subsection B of policy 7.17 itself sets out the “very special circumstances” test for inappropriate development, the natural inference is that the phrase “giving the same level of protection as in the Green Belt” refers not only to limb (b) of the protection for the Green Belt, but also to limb (a). Moreover, the effect of Mr Kolinsky’s argument is that it is left to local planning authorities to define for themselves what counts as appropriate development in this context; but that would involve giving subsection B an interpretive gloss which cannot be justified, particularly when that policy is contrasted with other policies in the London Plan which make it clear when and where such local policy setting and qualification of the strategic policies in the London Plan is permitted: see para. [12] above.

Mr Kolinsky also sought to derive support for his argument from the sentence in the commentary at para. 7.56 which states that “Appropriate development should be limited to small scale structures [etc]”. However, I do not think this assists him. It is a sentence predicated on there being an application for “appropriate development”, which on a proper construction of policy 7.17 means development which is appropriate development in terms of national Green Belt policy. The sentence does not show that such an interpretation of policy 7.17 is incorrect.

Mr Kolinsky emphasised that policy DM OS2 was adopted after a process of scrutiny of the Council’s Development Management Plan in which no-one (including the Greater London Authority, which had promulgated the London Plan) contended that it was inconsistent with the London Plan. Be that as it may, it does not affect the proper interpretation of policy 7.17, which is a matter for this court. It may be that potential inconsistencies between policy DM OS2 and policy 7.17 were simply overlooked previously. However, it is common ground that neither policy takes precedence over the other. Both qualify as policies in the development plan and the approach to each of them has to be in accordance with the legal principles referred to above.

Mr Kolinsky also emphasised that the applicant for planning permission did not consider that it had to put forward a case of “very special circumstances” to justify the grant of permission and that no objector objected to the development on the basis that it constituted inappropriate development in terms of Green Belt policy. However, whilst this may well explain why the Council did not focus on that aspect of the policy framework it cannot justify its failure to assess that the proposed development was inappropriate development under policy 7.17 and its consequent failure to assess whether the “very special circumstances” test was satisfied in this case. In acting as local planning authority, the Council was guardian of the public interest, as reflected in the various policies relevant to assessment of the proposed development, and it was incumbent on it to identify the correct approach to be applied under the relevant policy framework even if proponents of and objectors to the scheme had failed to do so.

Accordingly, I consider that in accepting Mr Kolinsky’s submissions the judge erred in his approach to the proper interpretation of policy 7.17. Contrary to Mr Kolinsky’s submissions, the Council failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.

I will now deal with grounds (ii) and (iii) before turning to the question of exercise of discretion in relation to remedy. Ground (ii) relates to the Council’s approach to consideration of the application in the context of the conservation area in which the development site is located. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in the exercise of its functions with respect to land in a conservation area a local planning authority is required “to pay special attention … to the desirability of preserving or enhancing the character or appearance of that area.” It is not in issue on this appeal that the Council complied with this duty, but Mr Lockhart-Mummery submits that policy DM HD1 imposes a stricter test, namely that new development “should conserve and enhance the character and appearance of the area” (my emphasis), and that the Council failed to make an assessment that there was both preservation and enhancement of the character and appearance of the area.

I do not consider that this ground of appeal is made out. The strict, chancery-style interpretation of policy DM HD1 proposed by Mr Lockhart-Mummery is not appropriate in this context. It is clear that the policy statement was intended to reflect the Council’s statutory duty with respect to conservation areas rather than to create a new and more demanding policy test (see, in particular, para. 4.3.2 of the commentary on the policy); and there is also force in Mr Kolinsky’s submission that the reference to enhancing the character and appearance of the area involves a particular focus on design quality for developments in conservation areas (as indicated by paras. 4.3.4 and 4.3.5 of the commentary on the policy), rather than a discrete policy requirement that a development should enhance a conservation area as well as conserving it. It would be surprising if, in the context of a policy relating to conservation areas, the Council had intended to create a policy going beyond conservation, which is the point of designating such an area in the first place. I therefore consider that the judge was correct to accept Mr Kolinsky’s submissions on the proper interpretation of policy DM HD1. In any event, I think that there was sufficient identification of enhancement of the character of the area at para. 47 of the April report (no generally harmful visual impact, an added element of visual interest and good overall design in character with existing operational infrastructure at the site, which already involves two arched structures above the weir) such as to make it clear that, as a matter of substance, the Council concluded that the policy would be complied with even on the stricter interpretation urged by Mr Lockhart-Mummery.

Similarly, I do not consider that Mr Lockhart-Mummery’s portmanteau make-weight ground (iii) is made out. The discussion at paras. 42-48 of the April report, read in the context of identification earlier in the report of a range of representations regarding the visual and heritage impacts of the development, shows that, as a matter of substance, the Council considered in the exercise of its planning judgment that the proposed development complied with the policies listed by Mr Lockhart-Mummery. That is so even in relation to policy CP11 (River Thames Corridor), which was not expressly referred to in the April report, because the substance of the discussion dealt with the impact of the development on the natural and built environment of the River Thames corridor at this point and there was express reference at para. 47 to the Thames Landscape Strategy, to which policy CP11 refers as defining the special character of different reaches of the River Thames. There was full consideration of the development from the point of view of its effect on the character of the local area (policy 7.4), of protecting and enhancing the open environment (policy CP10), of protecting and enhancing the special character of the Thames Policy Area including by ensuring that development establishes a relationship with the river and takes full advantage of its location (policy DM OS 11), and of ensuring good design quality (policy DM DC1). The Council acted lawfully and rationally in making its assessment in relation to these policies.

Therefore I conclude that ground (i) is made out as a valid ground of appeal, but not grounds (ii) and (iii). The question then arises whether this is a case in which relief should be refused in the exercise of discretion by the court under section 31(2A) of the Senior Courts Act 1981. This provides in relevant part as follows:

In this case, on the analysis adopted by Supperstone J in the High Court, he did not have to consider the exercise of discretion under this provision. CPR Part 52.10(1) provides that the appeal court has all the powers of the lower court, so it is for this court now to consider for itself whether this is a case in which relief must be refused under section 31(2A).

In my judgment, this is not a case in which relief should be refused under that provision or as a matter of any wider discretion as to remedy. Once the correct interpretation of policy 7.17 is identified as set out above, it can be seen that as a matter of substance the Council has gone badly wrong in its consideration of the planning merits of the application for development in this case. It failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, “very special circumstances” exist to justify the grant of planning permission, and it is far from obvious that they do. On the materials available before the court, Mr Kolinsky did not maintain any detailed submission that “very special circumstances” can be shown to exist.

The significance of these omissions is underlined by policy 7.17 itself, which specifies that, absent “very special circumstances”, planning permission for inappropriate development should be refused. Part of the point of the strictness of this policy, as for national Green Belt policy, is to safeguard important open areas from “death by a thousand cuts”, by a series of planning permissions being granted for developments each apparently reasonable in itself but having a serious cumulative detrimental effect on the important public interest in the continuing openness of MOL and the Green Belt: see R (Heath and Hampstead Society) v Camden LBC [2007] EWHC 977 (Admin); [2007] 2 P&CR 19, at [37] per Sullivan J; Turner v Secretary of State for Communities and Local Government[2016] EWCA Civ 466, [24]-[26].

In light of the strictness of the policy in policy 7.17 and the importance of the public interest it protects, I do not think that it can be said that it is highly likely that the outcome for the Appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.

For the reasons given above, I would allow this appeal and quash the planning permission in issue in these proceedings.

I agree.