New judgment: Tesco Stores Ltd v Dundee City Council  UKSC 13
21 Wednesday Mar 2012
On appeal from:  CSIH 9
The respondent council had granted planning permission for a rival superstore 800 metres from the appellant’s supermarket. The appellant unsuccessfully applied for judicial review of the council’s decision arguing that it had improperly interpreted and applied the development plan and that failed to consider its own policy (the “sequential test”). On appeal, the appellant submitted that if there was a dispute about the meaning of a policy in the development plan it was for the court to determine what the words were capable of meaning. If the planning authority attached a meaning to the words which they were not properly capable of bearing, then it made an error of law, and had failed properly to understand the policy.
The Supreme Court dismissed the appeal. Policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. That was not to say that such statements should be construed as if they were statutory or contractual provisions. Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgement. Such matters fell within the jurisdiction of planning authorities, and their exercise of their judgement could only be challenged on the ground that it was irrational or perverse. Nevertheless, planning authorities did not live in the world of Humpty Dumpty: they could not make the development plan mean whatever they would like it to mean.
An error in interpreting the policies would be material only if there was a real possibility that the determination might have been different, and in this case the Court was not persuaded there was any such possibility in this case.