Hilary Term
[2018] UKPC 1
Privy Council Appeal
No 0002 of 2017
JUDGMENT
Beau Songe Development Limited (Appellant) v The
United Basalt Products Limited and another (Respondents) (Mauritius)
From the Supreme Court of
Mauritius
before
Lord Kerr
Lord Carnwath
Lord Hughes
Lord Lloyd-Jones
Lord Briggs
JUDGMENT GIVEN ON
22 January 2018
Heard on 6 December 2017
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Appellant
Maxime Sauzier SC
Nandraj Patten
Heetesh Dhanjee
(Instructed by
Blake Morgan LLP)
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Respondent (1)
Eric Ribot SC
Yves Hein
Ruby Saha
(Instructed by
Sheridans)
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Respondent (2)
James Guthrie QC
(Instructed by
Royds Withy King)
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Respondents:
(1) The United Basalt Products Limited
(2) Minister of Environment, Sustainable Development
and Disaster and Beach Management
LORD CARNWATH:
1.
The central issue in the appeal concerns the legal effect, as it affects
the appellant’s proposed development, of a so-called “1km buffer-zone” shown in
a map forming part of an approved Outline Scheme under the Town and Country
Planning Act 1954 (the “1954 Act”). The dispute in short is whether (in words
quoted by the Supreme Court) the 1km radius shown on the map was “indicative up
to 1km extent” or “prescriptive of a 1km extent”. The Environment and Land Use
Appeal Tribunal (“the Tribunal”) preferred the former interpretation. The
Supreme Court disagreed. The issue now comes before the Board.
Background facts
2.
On 29 June 2011 an Environment Impact Assessment licence (“EIA licence”)
was granted to the appellant (“BSD”) by the relevant Minister, for the
subdivision (“morcellement”) of an area of 17.983 Ha at Beaux Songes into 305
residential lots (“the BSD site”). In December 2010 BSD had acquired the site
from Medine Ltd (“Medine”). In September 2003 Medine (then known as Medine
Sugar Estate Co Ltd) had been granted an EIA licence for a residential
subdivision of the same site into 348 lots. However, in August 2010, the
Minister informed Medine that the validity of the EIA licence had lapsed.
Accordingly when BSD acquired the site it had to apply for a new EIA licence.
3.
The respondent (“UBP”) objected to the grant of the licence for BSD’s
development. It is a company principally involved in the manufacture and distribution
of building materials within the construction sector. It has nine production
units in Mauritius, including a stone-crushing plant at Bambous, close to the
BSD site. UBP appealed against the Minister’s decision to the Tribunal. UBP
took issue in particular with the incursion of the proposed development into
the 1km buffer zone, as shown in the Development Management Map of the Black
River Outline Planning Scheme, approved in 2006 (“the 2006 Outline Scheme”). It
referred also to objections it had encountered over recent years to its own
modernisation programme from people who had previously moved into the area of
the buffer zone.
4.
The Minister was represented before the Tribunal as were BSD and UBP.
Evidence was given by a planning witness from the relevant department about
Ministerial practice in the administration of the planning system. Evidence
about the preparation of the relevant planning documents was also given by one
of BSD’s expert witnesses, Miss Koo, a Chartered Planner. She had been Chief
Planner with the Ministry until her retirement in 2007, and had previously been
involved in the preparation and submission for approval of the planning
documents.
5.
In its determination dated 13 January 2014, the Tribunal dismissed the
appeal and upheld the Minister’s grant of the licence. UBP appealed to the
Supreme Court. By a judgment dated 7 July 2016, the Supreme Court (Peeroo Ag
SPJ, Chui Yew Cheong J) allowed the appeal and quashed the determination of the
Tribunal. BSD now appeals to the Board. The appeal is opposed by UBP. The
Minister (represented before the Board by Mr Guthrie QC) has taken a neutral
position.
The legislation
6.
The operation and interaction of the relevant statutes is not
straightforward, at least to someone unfamiliar with the “morcellement” regime
in Mauritius, and its interaction with other legislative schemes. Fortunately,
there is no disagreement between the parties as to the material principles as
they apply to the appeal. The legislation can be considered under three headings:
environmental protection, morcellement, and planning. The last category is the
most directly relevant to the central issue in the appeal, and also the most
complex.
Environmental protection
7.
The requirement for an EIA licence and the applicable procedures are
governed by the Environment Protection Act 2002. Section 15(2) imposes the
requirement for an EIA licence before the commencement of certain categories of
an “undertaking” (as defined by section 3). BSD’s proposed development is such
an undertaking. Section 18 provides for an application for an EIA licence, and
the matters to be included in it. Section 23 provides for the decision of the
Minister, following opportunities for public comment (section 20), and taking
account of the recommendations of an EIA committee (sections 21-22).
8.
Sections 53 and 54 provided for a right of appeal against the decision
on an EIA licence to the Environment Appeal Tribunal. By the time of the
consideration of this case this tribunal had been replaced by the new tribunal
set up under the Environment and Land Use Appeal Tribunal Act 2012. The
composition of the Tribunal is governed by section 3 of that Act, and may
include non-legal members. (We were told that the membership in this case
consisted of a magistrate chairman, sitting with an attorney-at-law and an
environmental engineer.) By section 6 there is a right of appeal on a point of
law to the Supreme Court.
9.
There appears to be nothing in terms to link consideration of the EIA
licence application with policies or schemes approved under the planning
legislation. However, section 24(1) of the 2002 Act requires that regard be had
to “such policy or environmental guidance as may be published in respect of an
undertaking”. As the Board understands, it is common ground (whether by virtue
of that provision or otherwise) that the 2006 Outline Scheme had to be taken
into account by the Minister and the Tribunal, before granting or confirming
the EIA licence.
Morcellement
10.
Brief mention must be made of the Morcellement Act 1990 (the “1990
Act”), although its provisions are not directly in issue. The 1990 Act governs
the authorisation of “morcellement”, defined as “the division of a plot of land
into two or more lots” (section 2). The 1990 Act established a Morcellement
Board (section 4), to which application has to be made for a “morcellement
permit” under section 5. An application can only be made if the proposed
morcellement is in conformity with the “outline scheme” for the planning area
where the proposed morcellement is to be carried out, and if it is accompanied,
where applicable, by an EIA licence (section 5(2)(a)(c)). “Outline scheme” has
the same meaning as in the 1954 Act (section 2). Thus, although the 1990 Act is
not itself in issue, there is a statutory link between the morcellement
procedure, and the EIA licence and the planning scheme which are the subject of
the appeal.
Planning
11.
The 1954 Act established a comprehensive planning regime for the
country. It provided (inter alia) for the declaration of “planning areas” by a newly
established Town and Country Planning Board (“the Planning Board”) (sections 3,
6), the grant of building and development permits by local authorities (section
7), and the preparation and approval of outline schemes in respect of those
planning areas by the Planning Board (section 11).
12.
A new system of planning control was enacted in the Planning and
Development Act 2004 (“the 2004 Act”). This envisaged the eventual repeal and
replacement of the 1954 Act in its entirety (section 73), but in the mean-time
it allowed different provisions to be brought into effect at different times by
commencement orders, with appropriate transitional provisions (sections 75,
76). As explained in the introduction to the 2006 Outline Scheme (para 1.5):
“The new Planning and Development
Act 2004 once fully proclaimed will comprehensively overhaul the Town and
Country Planning Act 1954 and … provide new planning responsibilities for
District Councils.”
The consequence is, for the moment, a hybrid system of
planning control in which (as will be shown below) the National Development
Strategy (the “NDS”) and Ministerial guidance under the 2004 Act take
precedence, but much of the 1954 Act, including the provisions for Outline
Schemes and their effect, remains in force.
13.
The only provisions of the 2004 Act which need to be considered for the
purposes of the appeal are those relating to the new NDS (section 12), and to
Ministerial “planning policy guidance” (“PPG”) (section 13). These provisions
came into effect on 1 December 2004. Section 12 of the 2004 Act required the
Minister to adopt and keep under regular review a NDS, which should “prevail
over any other planning instrument to the extent of any inconsistency” (section
12(2)). Section 13 enabled him to issue “planning policy guidance” to any local
authority on “any aspect of land use planning and development …” Again it was
provided that relevant planning policy guidance should “prevail, to the extent
of any inconsistency, over a development plan …” (section 13(3)).
14.
The 2004 Act also provided for the eventual replacement of outline
schemes under the 1954 Act with three new types of development plan - local,
action area, and subject plans (sections 14-15). However, the introduction to
the 2006 Outline Scheme (para 1.2) makes clear that it was prepared under
section 11 of the 1954 Act (as was its successor in 2011). There is no dispute
that the 2006 Outline Scheme, and with it the relevant Development Management
Map, were duly approved under the 1954 Act. In interpreting the scheme and the
map, therefore, it is necessary to do so against the background of the relevant
provisions of that Act governing the content and effect of an Outline Scheme
(subject to any inconsistency with the NDS or any applicable PPGs under the
2004 Act).
15.
Under the 1954 Act the responsibility for preparing an outline scheme
lay with the Planning Board, subject to the Minister’s approval. (The title
page of the 2006 Outline Scheme indicates that it was prepared by the
Ministry’s Planning Division “on behalf of” the Planning Board.) The contents
of the scheme were defined by reference to the First and Second Schedules to
the Act (section 11(1), (2)). The matters for which provision “shall” be made
(under the First Schedule Part II) included -
“3. Reserving or allocating
any particular land or all land in any particular area for buildings of a
specified class or classes, or prohibiting or restricting, either permanently
or temporarily, the making of any buildings or any particular class or classes
of buildings on any specified land.
4. Reserving or allocating
any particular land or all land in any particular area for the purpose of any
industrial or trade purpose or for any specified undertaking.”
By section 11(3):
“Every outline scheme shall
specify and define clearly the area to which it relates and shall include a
plan in which shall be shown the extent of the scheme and such other matters as
can conveniently be included.”
16.
A copy of the outline scheme had to be placed on deposit, and a period
of three months allowed for inspection and representations by members of the
public (section 12). It was then required to be submitted for approval (with or
without modifications) by the President (section 13). On publication of the
notice declaring it to be in force -
“… the scheme shall have full
effect and no authority shall pass or approve any plans for building or
development that contravene the scheme.” (section 14(3))
Section 24 provided a procedure for the revocation or
modification of an outline scheme by the President, on the grounds (in summary)
of practical difficulties, subsequent events, or errors or omissions in the
scheme.
The planning policy documents
17.
Three categories of statutory planning documents require to be
considered:
i)
The NDS, adopted in 2005 under section 12 of the 2004 Act;
ii)
PPGs issued by the Minister under section 13;
iii)
The 2006 Outline Scheme, together with Development Management Map.
The National Development Strategy
18.
According to Miss Koo the NDS was “approved in April 2003 and
promulgated under section 12 [of the 2004 Act] in June 2005”. In her words it
advocated a departure from “the blueprint rigid type of prescriptive planning”,
previously used, in favour of “a proactive approach”. That thinking is
reflected in the Introduction to the NDS, which in a section headed “Key
Outputs”, says:
“The … National Development
Strategy … marks a change in direction and focus from the old style plan-making
process which fixed on a prescriptive set of land use allocations; the new
Strategy is designed to be more flexible and dynamic in response to
fast-changing requirements. It identifies areas of growth and restraint as
before but rather than prescribing specific land use allocations to each area,
the revised Strategy aims to provide a flexible framework involving public-private
and community partnerships within which a broad variety of uses can be
implemented …” (para 1.2.2)
More specific policies for different categories of
development are set out in later chapters. In each case there is introductory
text, followed by a series of specific policies, each identified by a letter,
number and title in bold type, and followed by a “justification” in ordinary
type.
19.
The Supreme Court quoted four short passages, which had been relied on
by UBP, in support of the contention that the Tribunal had failed to give
proper consideration to the 1km buffer zone. It is necessary to expand those
references, both in order to see the passages in context, and also to highlight
some apparent inconsistencies to which BSD draw attention. Taking them in
order:
i)
Chapter 5 (“Housing”) includes an introductory section under the heading
“Residential Land Allocation”, which precedes the numbered policies. Housing
policy, it is said, is to be consistent with “the general development
principles” embodied in the NDS, which are summarised under five bullet-points,
the last of which was quoted by the Supreme Court:
“As a sensitive land use, new
housing should not be permitted in close proximity to (ie within 1km of) ‘bad
neighbour’ developments such as landfill sites, which would have a negative
environmental impact on future residents, or on sites which would constrain
future expansion of employment or leisure activities.”
This is followed by Policy H1
(in bold type, with the title “Residential Land Allocation”). It provides for
allocations to follow “a sequential approach”, with a presumption against new
housing, in areas “outside limits … identified in revised Local Plans”, where
such sites are located in various categories of land (eg classified agricultural
land etc) one of which is -
“In areas within 1km of ‘bad
neighbour’ developments such as sewage treatment plants, landfill sites and
civic amenity sites as defined in conjunction with the Ministry of Environment
and specified in Policy ST3 and shown on revised Local Plans …”
Policy H4 (“Development
within Settlement Limits”) provides that, within settlement limits, housing
proposals will normally be approved “provided that they do not conflict with
the provisions of policy H1”, and conform to “well-defined planning
principles”. Thus, even within settlement boundaries as defined, it seems,
housing development may be restricted by reference to the specific constraints
identified in policy H1.
Chapter 7 (“Industry and
Commerce”) has a Policy I7 (“Bad Neighbour Industries”):
“Encourage, through a combination
of incentives and penalties, the relocation of bad neighbour industrial
activity. For new sites, consideration should be given to the establishment of
buffer zones in accordance with Policy ST3.”
The “justification” includes the following:
“In identifying new sites for bad
neighbour industrial developments, consideration should be given to the
clustering of uses on a single well-accessed site and the establishment of a
buffer zone up to 1km distant from sensitive land uses such as residential
areas, schools and hospitals, where this is feasible. Reference should also be
made in this connection to Infrastructure Policy ST3 for buffer zones around
landfill sites, incinerators, civic amenity facilities and other bad neighbour
uses. Buffer Zones should be identified in revised Local Plans in consultation
with the Ministry of Environment.”
(The Supreme Court quoted only the last sentence of this
passage, omitting the earlier references to “new sites” and to “a buffer zone
up to 1km”.)
ii)
Chapter 9 (“Agriculture, Forestry and Natural Resources”) has a policy
NR2 (“Buffer Zones around Rock Quarries and Crushing Plants”):
“To identify buffer zones around
existing and proposed rock quarries and crushing plants up to 1km within which
the location of new sensitive land use development will be discouraged in
accordance with Policy ST3.”
The “justification” refers to
a 2001 report of a Technical Advisory Committee on Rock Quarrying, which
advised that the boundaries of a quarry site should be “at least 1km” from the
limits of permitted development or the nearest residential building. It adds
that the same should apply to “new crushing plants” in the interests of both
operators and those proposing development in the vicinity, reference being made
also to Policy ST3. It adds:
“The precise extent and shape of
such buffer zones will be determined in revised Local Plans and Action Area
Plans in consultation with the Ministry of Environment.”
(Again the Supreme Court quoted
only the last sentence.)
iii)
Chapter 12 (“Physical Infrastructure”) has a policy ST3 (“Sites for
Buffer Zones around Bad Neighbour Developments”):
“In considering the location of
new bad neighbour developments, including sewage treatment works, landfill
sites and civic amenity sites and scrap yards, buffer zones up to 1km from
sensitive land uses should be identified in consultation with the Ministry of
Environment and shown in revised Local Plans. Acceptable uses within identified
buffer zones can include agriculture, forestry, animal-rearing grazing and
pastures.”
The “justification” says that this should apply also to bad
neighbour industries considered in policy I7, and that in selecting “new sites”
such developments should be planned “up to 1km” distant from sensitive land
uses, including residential areas. (The Supreme Court quoted only the phrase
referring to identification of “buffer zones up to 1km”, without noting that it
related to “new” bad neighbour developments.)
Planning Policy Guidance
20.
Planning Policy Guidance (“Design Guidance: Introduction, Approach and
Design Principles”) was issued dated November 2004. (Miss Koo confirmed that
this was issued under section 13 of the 2004 Act.) The introduction indicates
that the design guidance “does not prescribe rules and should be applied with a
measure of flexibility” (para 2.5).
21.
It has a section on “Industry Adjacent to Sensitive Uses”. This includes
a note on “Bad Neighbour Buffers”, which calls for special consideration to be
given to “particular requirements for buffer zones between sensitive land uses
and bad neighbour industries”, which “may need to extend up to 1km distance”.
There follows a table of “indicative distances” for various categories. They
include “quarry, stone crushing plant …” (“Up to 1 kilometre”). A side-note “S”
states (somewhat cryptically) that the guidance in the table is “considered to
be the minimum/maximum acceptable and should normally be provided”.
Black River Outline Planning Scheme 2006
22.
As already noted, the 2006 Outline Scheme was approved in September 2006
under section 11 of the 1954 Act. It replaced an Outline Scheme approved in
2001. According to Miss Koo the 2001 scheme had brought the BSD site within the
settlement boundaries. The 2001 scheme also had a specific policy in respect of
Stone Crushing Plants (Policy 7.2), requiring a “minimum buffer zone radius of
1km” for the siting of a “proposed” stone crushing plant. There was no specific
policy for existing plants, and no buffer zone was shown on the plan.
23.
In the 2006 Outline Scheme, the contents page includes a list of maps,
one of which is the “Development Management Map - Black River”. The
introduction explains the scheme’s relationship with the NDS and PPGs under the
2004 Act. It indicates that the 2004 Act “refers to Outline Planning Schemes as
Local Plans”; but that, pending the full proclamation of that Act, “existing Acts
and terminology prevail”, and “thus the terms District Council and Outline
Planning Scheme have been retained for use in this document”.
24.
Chapter 2 (“Development Context”) in a section headed District
Development Characteristics (para 2.2) notes that there are several existing
and potential bad neighbour developments, including a stone crushing plant,
which “require buffer zones to be established” (para 2.2.6).
25.
The following policies have been referred to in submissions as
potentially relevant:
i)
Policy SD1 (“Development Proposed within Settlement Boundaries”)
indicates that development other than bad neighbour development should normally
be permitted “within settlement boundaries as defined on the Development
Management map”, following a “sequential approach”.
ii)
Policy ID4 deals with the location of “Bad Neighbour Development”,
defined as including stone crushing plants. Preference is given to proposals
which enable such developments to be “clustered to share a buffer zone”.
“Acceptable uses within buffer zones” are defined as including agriculture and
similar uses, and recreation, but also other uses such as storage and
warehousing “at varying distances from a bad neighbour cluster”. The buffer
zone for particular uses should “form part of the EIA licence and be determined
by the relevant statutory authority”. The “justification” indicates that
facilities such as stone crushers should “where practicable be planned up to
1km distant from sensitive land uses” such as residential areas.
iii)
Reference has also been made in argument to the Glossary, which defines
“Settlement Boundaries”:
“These usually contain the
built-up area of a settlement and define the area within which there is a
presumption in favour of suitable development.”
26.
The Development Management Map shows the settlement boundary as
enclosing the BSD site. It shows a circle (marked “1km buffer”) round the site
of the UBP plant, for which the key indicates: “Stone Crushing Plant/Buffer
Zone”, and the “key policy number” is given as ID4. The circle intersects the
settlement boundary and takes in part of the BSD site.
The disputed issues
27.
The Tribunal had to deal with a range of issues - legal, policy and
technical. But as they said “The thrust of the whole debate” was “essentially
around the Buffer Zone”. They noted the argument for the respondents that there
was no such thing as a “prescribed” 1km buffer zone; a proper reading of the
planning instruments referring to a distance of “up to one kilometre” gave room
for “flexibility” within that distance. UBP by contrast called for “strict
adherence to the requirements of the law”. The Tribunal described the
difference between the two perspectives as between “a legalistic approach” and
“an approach of practitioners of land planning”, as exemplified by the emphasis
on “flexibility” explained in the evidence of Miss Koo.
28.
Their reasons for preferring the latter approach are apparent from the
following passage:
“… it is important also to note
that the principle of flexibility is embodied in the NDS itself, … The ‘flexibility’
with which the indicative criterion of the ‘up to 1 kilometre Buffer Zone’ is
to be assessed is explained by Miss Koo in her testimony, the relevant part
which enlightens this issue is as follows:
‘In 2001, the Town and Country
Planning Board brought the Morcellement site within settlement boundaries. Then
when the Outline Planning Scheme was updated in 2006 and lately in 2011, the
morcellement was still kept within settlement boundaries. But what has changed
is the element of flexibility and pragmatism introduced in the new version of
the Outline Planning Scheme as from 2006 ... As from 2006 and 2011, this
minimum buffer zone requirement has been replaced by ‘up to one kilometre’ and
qualified by other criteria ... We have introduced since 2006, a map called the
Development Management Map. It’s a Development Management Map. It’s not a
prescriptive map.’
Basically therefore, what the new
planning instruments advocate is an ‘in concreto’ assessment of the proposed
project, taking into account the nature of the project, the indicative buffer
zone (within the maximum of 1km buffer zone) and the specific criteria
of pollution potential.”
They found “ample evidence” that such an “in concreto”
approach had been followed by the Minister.
29.
The Supreme Court took a different view. They referred to the NDS
policies noted above. They quoted in particular the passage from the Housing
chapter, stating that new housing should not be permitted “in close proximity
to (ie within 1km of)” bad neighbour developments. They commented:
“It is therefore clear that the
general development principle of the NDS is not to allow new housing within 1km
of a bad neighbour.”
They also noted that policies in the NDS envisaged buffer
zones being identified in revised local plans. They thought significant BSD’s
acceptance that when it made its application for the EIA licence a radius of
1km was shown on the Development Management Map. It was clear to them that the
designation of the buffer zone in that map was -
“a relevant mechanism that was
used in compliance with the NDS for the implementation of the aims and objects
of the Act.”
The Tribunal had erred in failing to give due
consideration to the NDS policy that new housing should not be permitted within
1km of bad neighbour developments. They concluded:
“When the appellant left its
previous location to go and implant itself in the Black River area, there was
no buffer zone prescribed in relation to new industrial site from the nearest
residential building that existed there. It is obvious that following the NDS
those authorities that were given the responsibility to look at the area in
question to give effect to the objectives and policies of the NDS considered
that there should be no new housing within the Buffer Zone of 1km in the area
which they indicated on the Development Management Map of BROS [Black River
Outline Scheme]. They must have taken into account the Chapter of ‘Housing’ of
the NDS relating to Residential Land Allocation when identifying the Buffer
Zone. If new residents are allowed to settle near the UBP the latter would risk
that, in compliance with Policy I7 the authorities would finally cause its
removal for relocation elsewhere, although UBP was at that site first and new
residents would have been allowed to come near it. In all fairness and in
compliance with the mechanism set up by BROS the new residents should not be
allowed to come near it. We consider the fear of the UBP is quite legitimate in
the circumstances and that in view of the NDS having been statutorily adopted
setting the PPG relevant to housing and bad neighbour environment, it was not
unreasonable for UBP to have expected that only light industries would be
allowed to be located within the Buffer Zone in question.”
30.
Accordingly, the court ordered that the Minister’s decision to grant the
EIA licence should be quashed.
The Issues in the Appeal
The submissions
31.
As already noted, the issue before the Board turns in short on the
interpretation of the 1km buffer zone as indicated in the Development
Management Map.
32.
Mr Ribot SC, for UBP, generally supports the reasoning of the Supreme
Court. For BSD, Mr Sauzier SC supports the Tribunal’s interpretation. He
submits that the Tribunal were entitled to accept the expert evidence,
including that of Miss Koo who was directly involved in the preparation of the
plans, as to the purpose of the buffer zone, and the intention that it was to
be indicative rather than prescriptive. This was supported by the fact that a
number of buffer zones had been shown for stone crushing plants around the
island, all of the same diameter regardless of the capabilities of the plant in
question. There was no evidence of any separate consideration of the factors
relevant to determining the precise extent of the areas needing protection.
33.
These, he submits, were issues of fact within the province of a
specialist tribunal, whose views should have been given weight by the Supreme
Court AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678, para 30). The Supreme Court was not entitled to
overturn the decisions of a lower jurisdiction on such matters short of
perversity or serious misdirection, which was not shown (Société Blue
Diamond v Registrar General 2014 SCJ 64). Furthermore, the Supreme Court
had relied on selective reference to parts of the policies, without regard to
their effect as a whole. In particular they had relied on the fifth bullet
point in the NDS Housing chapter, without taking account of all the relevant
housing policies, notably the location of the site within the defined
settlement boundary where under both the NDS and policy SD1 of the 2006 Outline
Scheme there is a presumption in favour of housing development.
Discussion
34.
The Board is unable to accept Mr Sauzier’s primary submission. He argued
that the critical issue was one of fact, properly determined by the Tribunal on
the basis of the expert evidence, and that they were entitled in particular to
accept Miss Koo’s evidence about the genesis and thinking behind the planning
documents. In the Board’s view this submission fails to take account of the
principles governing the interpretation of statutory planning documents of this
kind, as explained by the UK Supreme Court in Tesco Stores Ltd v Dundee City
Council [2012] UKSC 13; [2012] PTSR 983 and Hopkin Homes Ltd v Secretary
of State for Communities and Local Government [2017] UKSC 37; [2017] 1 WLR 1865. Mr Sauzier did not question the application of those authorities in
Mauritius.
35.
In the Tesco case Lord Reed, speaking of development plans under
the Scottish planning system, made clear that there were no special rules for
planning policy documents:
“… in this area of public
administration as in others … policy statements should be interpreted
objectively in accordance with the language used, read as always in its proper
context.” (para 18)
He added that such statements should not “be construed as
if they were statutory or contractual provisions”:
“Although a development plan has a
legal status and legal effects, it is not analogous in its nature or purpose to
a statute or a contract. As has often been observed, development plans are full
of broad statements of policy, many of which may be mutually irreconcilable, so
that in a particular case one must give way to another. In addition, many of
the provisions of development plans are framed in language whose application to
a given set of facts requires the exercise of judgment. Such matters fall
within the jurisdiction of planning authorities, and their exercise of their
judgment can only be challenged on the ground that it is irrational or perverse
...” (para 19)
36.
That guidance was repeated in the Hopkin Homes case (paras
22-26), although the court also reiterated the need to remember that “these are
statements of policy, not statutory texts, and must be read in that light”. The
court also drew an analogy between specialist planning inspectors (under the UK
planning systems) and expert tribunals (considered in AH (Sudan)), so
that the court should -
“… respect the expertise of the
specialist planning inspectors, and start at least from the presumption that
they will have understood the policy framework correctly.”
37.
Mr Sauzier is right to submit that a similar approach should apply to
the role of the Tribunal in the present case, as respects the application of
issues of planning and policy judgement. However, the Tribunal were wrong, with
respect, to regard the interpretation of the approved policy documents in that
light. It is not clear whether they were referred to the guidance in the Tesco
case. It would or should have led them to understand that their first task
was one of legal interpretation of the planning documents to be decided by
reference to “the language used, read as always in its proper context”, not on
a choice (as they put it) between the approaches of lawyers and planning
practitioners. It seems clear that they allowed themselves to be unduly
influenced by the evidence of Miss Koo and others as to the supposed thinking
within the Ministry, rather than the analysis of the documents themselves. The
Supreme Court were right to hold that in this respect they had misdirected
themselves, and that their reasoning could not be supported.
38.
Turning to the judgment of the Supreme Court, the Board sees some force
in Mr Sauzier’s criticism of their selective approach to the policies of the
NDS and the 2006 Outline Scheme. By so doing they may have allowed themselves
to underestimate some of the difficulties resulting from inconsistencies and
ambiguities in the planning documents.
39.
As appears from the review attempted earlier in this judgment, the
references to the 1km buffer zone are far from consistent. The bullet point on
which the Supreme Court placed most reliance does indeed refer to the distance
of 1km in unqualified terms, but that reference is in the introductory text
rather than a specific policy. It would have been more relevant to refer to the
policies themselves. As noted above, policy H1 uses the same expression to
exclude from development areas related to bad neighbour development. But that
policy applies principally to development outside settlement boundaries (unlike
this proposal). More directly relevant is Policy H4 which applies a presumption
in favour of housing proposals within settlement boundaries. That excepts
proposals which “conflict with the provisions of policy H1”, thereby, it seems,
implicitly referring back to the excluded areas under the earlier policy.
40.
Such an interpretation would be consistent with the introductory text on
which the Supreme Court relied, and supportive of their interpretation. Further
it would also explain how the buffer zone can be reconciled with the inclusion
of the BSD site within the settlement boundary as defined in the 2006 Outline
Scheme. (It is in any event accepted in the 2006 Outline Scheme that some forms
of development, such as warehousing, may be accepted within buffer zones.)
Accordingly, the NDS housing policies taken on their own can be read as
supporting the Supreme Court’s interpretation of the buffer zone as giving
effect to a general NDS principle not to allow housing within 1km of a bad
neighbour.
41.
Against that, Mr Sauzier can reasonably point to other parts of the NDS
and the Planning Policy Guidance as at least much less clear-cut. There are
indeed plenty of other references in policies and supporting text to buffer
zones of “up to 1km”. Furthermore, it is not always clear whether the
references are to existing or new crushing plants. Most directly relevant might
be thought NDS policy NR2, which deals in terms with buffer zones round
“existing and proposed” rock quarries and crushing plants. That refers to the
need to identify buffer zones “up to 1km”; but then, confusingly, in the justification
quotes a technical report which advocates a distance of “at least 1km” for rock
quarries, and explains why the same thinking should apply to “new crushing
plants”. The same uncertainty is found in the relevant Planning Policy
Guidance.
42.
The only other clear indication which emerges from the NDS is the
expectation that more precise boundaries, where needed, would be defined in the
revised local plans. The 2006 Outline Scheme, although made under the 1954 Act,
was intended to fulfil the function of a local plan under the new regime. It is
unfortunate that there is nothing in the text of the 2006 Outline Scheme to
explain more precisely the purpose and effect of the buffer zone as shown in
the map. Nor is its clarity helped by the link in the key to policy ID4, which
is not directed to buffer zones for existing installations, such as the UBP
plant. In terms it is directed to the location of new proposals. Furthermore,
it speaks only of planning “where practicable” for new proposals to be “up to 1km
distant” from sensitive land uses. It therefore provides no direct support for
the 1km radius as shown on the plan.
43.
However, the Board notes that the buffer zone for the UBP plant was
shown for the first time in the 2006 Outline Scheme. The previous scheme had
included a buffer zone for new proposals, but nothing had been shown for the
UBP plant. That tends to support the view that it was intended, as the Supreme
Court thought, to supplement the NDS by providing a more precise indication of
the buffer zone. To treat it as purely “indicative”, whatever that means, would
seem to defeat the purpose of including it in the 2006 Outline Scheme at all.
Indeed, it is not clear what is the practical utility of a buffer zone
designation which implies nothing more precise than a protected area, which may
be anything between 0km and 1km in radius.
44.
It is also difficult to reconcile such imprecision with the relevant
provisions of the 1954 Act, under which the 2006 Outline Scheme was prepared.
As noted above, the First Schedule to that Act, which prescribes the contents
of an outline scheme, requires the contents to be directed to allocating or
imposing restrictions on “particular areas”. It says nothing of purely
“indicative” designations. Even if the 2004 Act was intended in due course to
embody a more flexible approach, regard must be had for present purposes to the
statute under which the 2006 Outline Scheme was prepared and approved.
Conclusion
45.
The appeal has highlighted the need for attention to be given to
improving the clarity and consistency of the statutory planning document, and
in particular to clarifying the interaction of the 1954 and 2004 Acts pending
full implementation of the latter. While the Board has found the resolution of
the issues in the appeal more difficult than they apparently appeared to the
Supreme Court, it ultimately agrees with their conclusion.
46.
The appeal must therefore be dismissed with costs (subject to any
submissions on costs received within 21 days of this judgment).
