[2025] UKUT 312 (LC)

There was disagreement between the parties about the meaning of a number of policies in the development plan, but the proper approach to the interpretation of planning policy was not in dispute. We were referred to Tesco Stores Ltd v Dundee [2012] UKSC 13, at [18]-[19], for the proposition that planning policies should be interpreted objectively, in accordance with the language used, read in its proper context. They should not be interpreted with the precision appropriate to statutes or contracts, because they are full of broad statements of policy, many of which may be mutually irreconcilable. In such cases planning judgment is required to determine which should give way to the other. 

We were also referred to R (Tesco Stores Ltd) v Stockport MBC [2025] EWCA Civ 610, at [35]-[37], where Sir Keith Lindblom SPT warned against taking too sophisticated an approach:

“36.

Interpreting a planning policy ought not to be a difficult task, but straightforward […]. It should not generally involve the kind of linguistic precision the court would bring to the interpretation of a statute or contract. Construing the language in the policy should not require it to be dismantled and reconstructed, or a gloss imposed upon it, or resort to paraphrase. One can expect the purpose of the policy to be clear from its own provisions, given their ordinary meaning and read in their context. Policies should be stated in plain terms, easy to understand for those affected by decisions made in accordance with them, and capable of being applied with realism and common sense. Mostly they are.

37.

The court should respect the policy-maker's choice of words in formulating the policy as it stands. As a general rule, the temptation to infer terms the policy-maker has not actually used should be resisted.The court will sometimes be able to conclude that the words of the policy mean exactly what they say, nothing more and nothing less. It should not hesitate to do this if it can.”

Because Quintain’s CAAD application is, in effect, to be determined as if it were an application for planning permission we are required to have regard to the provisions of the statutory development plan, so far as they are material to the application, and to determine the application in accordance with the plan unless material considerations indicate otherwise.

The relevant national policy on design and land use principles supplied by the National Planning Policy Framework is not in dispute. At City level, the relevant plan comprises the Birmingham Development Plan 2017 (“the BDP” or simply “the Plan”), adopted eighteen months before the valuation date in January 2017, and certain saved policies in the 2005 Birmingham Unitary Development Plan. The Plan is said (at 5.21) to reflect the principles and proposals of an earlier document, the Big City Plan, which dated from 2011 and to which reference was made in the evidence. It also builds on the establishment in 2011 of a City Centre enterprise zone.

The BDP was prepared after the cancellation date and took account of the proposed development of HS2, with the Appeal Site being included in a safeguarding zone. Applying the cancellation assumption, policies which anticipate the HS2 scheme are either to be disregarded or read as they were intended to be in the event that the scheme did not progress.

Section 3 of the Plan sets out the objectives and strategy for the City to develop over the period to 2031. Amongst the objectives identified is the development of sustainable neighbourhoods with locally distinctive character and making provision for a significant increase in the City’s population. These sustainable neighbourhoods would feature “a wide choice of housing sizes, types and tenures” to meet community needs. The strategies identified to meet the City’s “growth agenda” included ensuring that the development of new homes is matched by the provision of opportunities for new employment, accessible local services and a high-quality environment. The focus will be on meeting as much as possible of the City’s need for new housing within the urban area, including by utilising industrial land and open space that no longer performs its original function; “brownfield and other available sites within the existing built-up area … [will] be the priority”. The role of the City Centre is to be strengthened by the provision of five “wider areas of change”, one of which is Eastside.

These high-level statements of intent are followed by individual policies and supporting text. Policy PG1 (“PG” being a reference to “planning for growth”) sets out the overall levels of growth which the City is planning for in housing, employment, office and retail development. These include providing 51,100 additional homes in the plan period (leaving a shortfall of 37,900 below the City’s assessed housing need which the City hopes will be met by neighbouring councils).

The key policies to which specific reference was made in evidence, and which the Secretary of State maintains are infringed by Quintain’s proposals, are policies PG3, GA1 and TP27. We have previously considered Policy TP33 when determining the need for PBSA.

Policy PG3, titled “place making”, sets the scene for how development should be brought forward by stipulating that all new development will be expected to demonstrate high level design quality. Amongst desired characteristics of new development the policy mentions design which responds to the local area context, including heritage assets; attractive external spaces, streets and public spaces; supporting the creation of sustainable neighbourhoods; and making efficient use of land.

Policy GA1 (“GA” referring to “growth area”) is concerned with the city centre, identified as one of the key areas contributing to the growth anticipated in Policy PG1. The city centre is subdivided by policy into seven distinct but currently underutilised “Quarters”, one of which is Eastside, described in Policy GA1.3 as an area for learning and technology, whose role is to be maximised, and its extensive development opportunities realised. A large portion of Eastside, including the Appeal Site and sites 2, 3 and 4, is also designated as one of five “wider areas of change” within the city centre. Now freed from the constraints of the inner ring road, these areas are seen as forming logical extensions of the City Centre Core and as making a significant contribution to its overall growth. The plan identifying the wider areas of change picks out the Appeal Site and additionally designates it as an Enterprise Zone Site, with the adjoining sites 2, 3 and 4 forming part of a larger Curzon Park Enterprise Zone Site.

Policy GA1 is divided into four parts. GA1.1 describes the role and function of the city centre. Our attention was drawn to a number of specific statements:

“The City Council will continue to promote the City Centre as the focus for retail, office, residential and leisure activity within the context of the wider aspiration to provide a high quality environment and visitor experience.

New development should make a positive contribution to improving the vitality of the City Centre and should aim to improve the overall mix of uses. […]

Residential development will continue to be supported in the City Centre where it provides well-designed high quality living environments. Developments will need to provide flexible and adaptable accommodation meeting a range of needs including for families.”

The eastward expansion of the City Centre Core into Eastside is highlighted in Policy GA1.2, which identifies the five wider areas of change which are to be the focus of the proposed growth, including the provision of 12,800 new homes in the City Centre as well as additional retail and office floorspace. The ongoing regeneration of Eastside “will require well designed mixed use developments including office, technology, residential, learning and leisure.” Enhanced connectivity between Eastside and surrounding areas including Digbeth and the City Centre Core is identified as a requirement of any proposals for an HS2 station, but the station itself is not assumed. The desired enhancement of connectivity is not conditional on the new station but is separately emphasised in Policy GA1.4 where measures to improve accessibility to and within the City Centre are specified, including enhanced high quality pedestrian and cycle routes, public open spaces and squares, and the integration of public transport.

The general approach taken by Policy GA1.3 to the distinctive character of the Quarters is that these are to be supported and strengthened by new development “raising their overall quality, offer and accessibility”. The rationale for this approach is explained in supporting text which highlights the significant potential of a number of areas, including Eastside, to “accommodate a range of uses and densities of development expanding the Core and diversifying the overall offer”. The development and growth of the Quarters would be the subject of additional planning guidance in neighbourhood plans “where necessary” (none had been brought forward for Eastside by the valuation date or subsequently). The significant growth of the City Centre’s resident population will continue to be supported with new residential schemes.

After the policies dealing with growth and place making, the BDP is organised into separate chapters comprising thematic (TP) policies, one of which is Chapter 8 dealing with homes and neighbourhoods. The theme of Policy TP27 is “sustainable neighbourhoods” and it is introduced with the statement that “the concept of sustainable neighbourhoods” is “at the heart of the City’s growth agenda”. This concept is to ensure that future housing within and outside the growth areas is delivered in the most sustainable way, contributing to creating a strong sense of place, high standards of design and environmental sustainability and climate proofing and supported by high quality infrastructure and facilities. The focus of Policy TP27 is therefore on housing, but that is not a reason to marginalise it since Quintain’s proposal seeks maximum flexibility in the use of space and any part of the proposed development (with the exception of two blocks specified as offices) could be residential. The policy itself states that all new residential development will need to demonstrate that it is meeting the requirements of creating sustainable neighbourhoods, the characteristics of which are then specified in a list covering choice of housing to ensure balanced communities, access to facilities within easy reach, travel options, and a strong sense of place with high design quality so that people identify with, and feel pride in, their neighbourhood.

As for the location of new housing, Policy TP28 emphasises infrastructure and accessibility as important considerations. The supporting text (at 8.9) explains that while the City’s Strategic Housing Land Availability Assessment (the “SHLAA”) which identified suitable sites to meet the City’s assessed housing need) was intended to be as comprehensive as possible, it was inevitable that other opportunities for housing development would arise. It was expected that a minimum of 80% of new homes to be provided over the Plan period would be located on previously developed land.

Policy TP33 remains relevant, although we have already concluded in answer to the preliminary issue concerning off-campus student accommodation that there was a demonstrated need for the provision of PBSA at the valuation date. It was acknowledged that the Appeal Site is very well located to serve at least two of the City’s Universities. Other material considerations identified in Policy TP33 include that the proposed development will not have an unacceptable impact on the local neighbourhood and residential amenity, and that the scale, massing and architecture of the development is appropriate to the location.

The Council’s March 2003 Supplementary Planning Guidance on “High Places” was also referred to in evidence and relied on by Mr Adams, the Secretary of State’s planning expert, notwithstanding that it was published 15 years before the valuation date and 14 years before the BDP. Mr Townsend considered it to be of only limited relevance because, as he put it, ‘the context had moved on’, and, as Mr Elvin submitted, it did not deal with non-design benefits such as optimising the potential of sites to accommodate new development. We recognise the validity of those points, but we note that in their report to the Planning Committee on Quintain’s application the Council’s own officers regarded High Places as describing the policy approach towards tall buildings, including appropriate locations and when exceptions should be made.

High Places defines a tall building in the city centre as one higher than 15 storeys. It recognises high quality landmarks as appropriate in special circumstances. The useful functions which well-positioned and well-designed tall buildings are said to fulfil include marking important facilities, acting as landmarks or, in a closely linked cluster, signalling the centre of the City or acting as a key gateway. A distinctively designed tall building or group of buildings could even endow the City with a unique skyline, easily recognisable in an international context and helping to attract international companies.

High Places adopted a restrictive approach, specifying that tall buildings would only be appropriate in the locations identified on three policy maps. The first of these maps (Map 2) delineates the central ridge on which the City Core sits and to which tall buildings are generally to be limited. The Appeal Site is situated just outside this zone. Map 3 then pinpoints appropriate locations within the same central ridge zone (or in one case just outside it) where it is said tall buildings can act as key arrival points and key view terminators around the city centre. Map 4 shows the approximate position of another six suitable locations, where tall buildings may aid the legibility of the City’s form such as by marking gateways to the City Centre at major public transport interchanges. One of the approximate locations shown on Map 4 is now the site of the Clayton Hotel, immediately north of the Appeal Site. Although Mr Adams relied on the restrictions imposed by High Places in support of the suggestion that any proposal for tall buildings on the Appeal Site would be required to demonstrate exceptional circumstances, we are satisfied that Map 4 can be interpreted as sanctioning at least part of it as an appropriate location. That was not seriously disputed, and the real debate about tall buildings concerned height and number, not the principle that the Appeal Site was a suitable location.

Mr Williams KC placed some reliance on the Big City Plan published in July 2011, while acknowledging that it does not form part of the statutory development plan and predated the BDP by six years. It includes a masterplan for the transformational development of Eastside around and beyond the new HS2 station with predominant uses continuing to be office, leisure and learning lead, but with residential uses making an important contribution to making Eastside a “liveable and vibrant quarter”. The Big City Plan envisaged the expansion of the city core uses into Eastside as an opportunity for a range of buildings “from 6 to 10 storeys rising to 16 storeys to mark key views.” The supporting text to Policy GA 1.3 of the BDP states that the principles and proposals of the Big City Plan are reflected in the BDP, which led Mr Elvin KC to suggest that anything of continuing relevance in the Big City Plan is likely to have found expression in the BDP policies. We agree with that up to a point and note also that officers did not refer to the Big City Plan in their report to the planning committee. The document is nonetheless interesting as the only masterplan for Eastside’s transformation and as an early reflection of the long term vision for this part of the City which the BDP is intended to deliver. Mr Adams thought that it deserved limited weight, and we agree.

The Big City Plan does illustrate one of the acute difficulties in this appeal. It assumes the presence of the new HS2 station so that, as Mr Townsend observed, it was unsurprising that the Appeal Site was not identified as a location suitable for tall buildings. The same expectation of HS2 casts its shadow over other key planning documents, such as the SHLAA, which ignored the Appeal Site and its neighbours safeguarded for the HS2 scheme. These strategic city centre sites have largely been bypassed in the formulation of policy since long before the HS2 launch date in 2013, yet the assumption underlying the appeal is that the same scheme was cancelled on that date. The principles governing the determination of the appeal also preclude speculation about how policy might have developed differently, or how proposals for neighbouring sites might have emerged, between the cancellation date and the valuation date. The result is that we are required to make planning judgments in a relatively featureless landscape, without information or policy guidance which would probably have become available by the valuation date had HS2 really been cancelled.

We will refer to other relevant policy documents as they arise in relation to specific issues.