Town and country planning – Planning permission – Water neutrality – Local authority refusing planning permission for development of mobile home and stable block on claimants’ land – Defendant’s inspector dismissing appeal – Claimants applying for statutory review – Whether inspector wrong to find only lawful development exempt from the requirement to demonstrate water neutrality – Whether appeal in abeyance until strategic mitigation solution found – Application dismissed
In 2018, the claimants applied for planning permission for “one residential unit and stable block” on land east of Coolham Road, West Chiltington, West Sussex. In 2019, the second defendant local authority refused the application and the claimants appealed. A hearing scheduled for June 2020 was postponed due to the COVID-19 pandemic.
In December 2020, the claimants moved into a mobile home on the site in breach of planning control. A stable block was erected in a different location to the proposed development; it was a temporary structure capable of being moved.
Following the publication of Natural England (NE) guidance in September 2021, the claimants were required to submit a water neutrality statement (to show the use of water in the supply zone before the development was the same or lower after the development). The claimants stated that, as they had been residing on the site (and consuming water) prior to the “base date” of the NE guidance, granting planning permission for residential use of the site would not result in any additional water consumption above the status quo.
Having consulted NE on whether the claimants’ approach was correct, an inspector appointed by the first defendant secretary of state dismissed the appeal, concluding that only water usage associated with lawful development (ie, development with the benefit of planning permission or immune from enforcement action) was exempt from the requirement to demonstrate water neutrality. The claimants applied for statutory review.
Held: The application was dismissed.
(1) Read as a whole, the thrust of NE’s guidance was that the competent authority had to decide whether the proposed residential occupancy had already been granted planning permission or whether it was “otherwise accounted for”. In the NE’s response, there was an indication (albeit not conclusive) that the focus should be on the impacts of water use “not currently permitted”.
In the light of NE’s response, the inspector’s approach of treating “otherwise accounted for” as akin to “immune from planning control” was not outside the range of reasonable approaches open to him. It reflected the inspector’s judgment (as the competent authority) as to how the guidance best applied to the circumstances of this case.
The inspector gave an adequate explanation of the approach that he was adopting. He understood and addressed in sufficient detail the claimant’s case and his approach could not be characterised as an irrational application of the guidance given to him by NE. The inspector’s approach to water neutrality was consistent with NE’s guidance and represented a lawful approach to his duties under regulation 63(5) of the Conservation of Habitats and Species Regulations 2017 to ascertain that the development would not adversely affect the integrity of the European site or the European offshore marine site.
The inspector had well in mind that, in the three appeal decisions relied on, long standing uses (which did not have immunity from planning control) had been taken into account as part of the baseline for assessing impact in those cases. The inspector acknowledged that he was taking a different approach but grounded his approach in the specific circumstances of the present case: R (on the application of Mott) v Environment Agency [2016] PLSCS 174; [2016] 1 WLR 4338, R (on the application of Wyatt) v Fareham Borough Council [2023] PLSCS 118; [2023] PTSR 1952 and CG Fry Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] Civ 730; [2024] PLSCS 119 distinguished.
(2) The claimants’ argument that, having otherwise found the development to be acceptable in planning terms, the inspector should have placed the appeal in abeyance until a strategic mitigation solution was found, was rejected. The request to hold the appeal in abeyance, in itself, did not indicate what (exactly) the inspector was being asked to do. It was not clear from the request how long it was being suggested the appeal should be held in abeyance. It was not clear what should happen if a mitigation scheme did not materialise. There was an inherent difficulty (not addressed in the request) of what would happen if circumstances changed in the period that the appeal was being held in abeyance. Further, it was unclear from the request how the rationale for holding the appeal in abeyance would be communicated to the parties.
The proposal to put the appeal into abeyance had not been articulated with sufficient clarity to make it a practical solution. There was no certainty how long the period of abeyance should be for. It was unclear that the claimants’ proposition was workable in practice. In that context, the inspector’s failure to address it was neither unlawful nor a breach of his duty to give reasons for his decision.
(3) The argument that the inspector should have made a split decision and granted planning permission for the proposed stable block was also rejected. An inspector might make a split decision. If no request was made for a split decision, no obligation on the part of the inspector to address the point of his/her own volition was likely to arise: Granada Hospitality Ltd v Secretary of State for the Environment, Transport and the Regions [2000] PLSCS 145; (2001) 81 P&CR 36, R (on the application of Coronation Power Ltd) v Secretary of State for Communities and Local Government [2011] EWHC 2216 (Admin) and Langton Homes Ltd v Secretary of State for Communities and Local Government [2014] EWHC (Admin) [2014] EWHC 487 (Admin); [2014] PLSCS 72 considered.
In the present case, no reliance was placed on any request to the inspector to make a split decision. It was common ground that there was no explicit request in the submissions written by the claimants’ planning consultant. This case was similar to Langton Homes where the point was not raised by an experienced planning consultant and therefore no obligation arose for the inspector to address it. In those circumstances, there was no requirement on the Inspector to address the issue and no legal error in his failure to do so.
Michael Rudd (instructed by Fulchers Solicitors) appeared for the claimants; Matt Lewin (instructed by the Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
