The interpretation of planning policy is a key issue in the determination of planning applications.
The meaning of “fully addressed” might seem straightforward, but it ended up being debated in the English Court of Appeal.
In June 2015 a written ministerial statement was made by the Secretary of State for Communities and Local Government (and does not therefore apply in Scotland). It set out new considerations for applications for planning permission for wind turbines.
It included a statement that local planning authorities should only grant planning permission if:
following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.
Mr Holder, a member of a local group of objectors challenged the grant of planning permission for a wind turbine by Gelding Borough Council. He submitted that a planning impact can only be “addressed” if it is eliminated or resolved.
The Court disagreed. They showed knowledge of the realities of the planning system, noting that it is rarely the case that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits:
Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits.
“and therefore has their backing”
The Court also pointed out that “fully addressed” could not be removed from the immediate context of the sentence in which it appears.
The Statement confirmed that the rest of the sentence – “and therefore has their backing” – requires the planning authority to make a judgment whether a proposal has the backing of the affected local community.
The Court stated:
In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.
As it’s about the exercise of planning judgment, the Court did not explain how the “balance of opinion” is identified. It did caution against too much weight being given to a vocal minority rather than a silent majority:
Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.
National policy in relation to renewable energy was also relevant. The Court recognised that although the Statement is intended to be additional policy guidance, it is plainly not intended to be completely at odds with national policy in relation to renewable energy.
In the Court’s view, taking the objector’s interpretation would result in many more cases of conflict with national and local policy in favour of renewable energy.
The Statement would be “hollow” if it was outweighed and overridden by other very weighty factors in national and local policy. Conversely, if local planning authorities applied the Statement and treated national and local policy as overridden, that would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended.
These were all factors which weighed against the interpretation suggested by the objector.
This decision is a useful reminder to pay close attention to not just a phrase in a policy, but also the surrounding text and overall context.
It’s not necessarily as simple as looking up the dictionary.
On March 1, 2018