Land formerly used as school playing fields — Conditional contract for purchase of appeal site for housing development — Planning permission refused — Land currently used as recreational open space by public on informal basis — Inspector finding it “improbable” that use likely to continue — Whether competing uses test properly applied — Inspector’s decision quashed on appeal
Christchurch Borough Council sought to quash the decision of the inspector, who granted outline planning for the erection of 30 houses on land at Burton Primary School, Salisbury Road, Burton, Christchurch, Dorset. The land belonged to Dorset County Council in their capacity as education authority and was formerly used as playing fields for Burton Primary School. The land was declared surplus to educational requirements. Dorset County Council agreed to sell the land to Barratt, the proposed developers and second respondents. The sale was conditional upon planning permission. Since 1983 the land was used for recreational purposes without any formal arrangement. The appellants, the local planning authority, refused planning permission as an undesirable development of open space. The inspector concluded that if the appeal were refused, it was “improbable” that the land site would be effectively put to use as a public open space. He cited the test of planning merits of two competing uses in Westminster City Council v British Waterways Board [1985] AC 676. The application to quash his decision was refused at first instance: see [1992] EGCS 40. The local planning authority appealed.
Held The appeal was allowed.
1. The inspector outlined the test in the British Waterways Board (supra), viz in a contest between the planning merits of two competing uses “to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must … be necessary at least to show a balance of probability that … the land in dispute will be effectively put to use A”.
2. It was clear however that the inspector did not deal in express terms with the question whether the existing informal use of the site was likely to continue if the outline application were rejected.
3. Nor did he deal with whether the presumed advantages of the development proposal were outweighed by the loss of the existing use either alone or in conjunction with the potential use as formal public open space.
4. Failure by the inspector to address the question as to the likelihood of the existing informal use of the site by the public continuing in future — if development permission were refused — and to give reasons for his implied conclusion that the benefits of granting permission outweighed the benefits of that existing use, justified the quashing of the decision.
5. Moreover, the “competing needs” test did not exist as a matter of law. Such a proposition would involve putting an unwarranted gloss on the language of section 70(2) of the Town and Country Planning Act 1990: see London Residuary Body v Lambeth London Borough Council [1991] 3 PLR 1. An inspector’s task was to take account of all considerations which were material and to give due weight to the presumption in favour of development and whether it arose in the present case. His task was then to decide whether the relevant objections outweighed the presumption. Nowhere did he purport to carry out an overall balancing exercise of that sort.
Timothy Straker (instructed by Sharpe Pritchard, agents for the solicitor to Christchurch Borough Council) appeared for the council; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondents, Barratt Southampton Ltd, did not appear and were not represented.
