Development of site — Application to challenge validity of planning permission — Whether inspector failed to have regard to material consideration — Application refused
The application related to land at Lees Croft, South Warnborough. In 1985 the council adopted the Hart district local plan in which the South Warnborough settlement boundary was first defined. Land to the west of Lees Croft, Hampshire, was outside the boundary. In March 1989 the council adopted the first alteration to the local plan and the settlement boundary remained unchanged. In June 1990 they prepared a consultation draft second alteration to the local plan. This included a proposed extension to the boundary with two sites west of South Warnborough to the north and south of Lee’s Hill. A local inquiry was held. The inspector recommended that the boundary revert to the line shown in the first alteration. That would have excluded the appeal site making it subject to restraint policies.
On April 15 1993 the council’s report to the planning and infrastructure committee overlooked the inspector’s recommendation. A planning application was made by the second respondent, the landowner, and refused by the council on October 12 1994 who proposed the South Warnborough Alteration to correct the error and amend the boundary in accordance with the inspector’s recommendations. Two objections were made this. In March 1996 a local inquiry was held by the first respondent into the second respondent’s appeals against refusals of planning permission to build a number of houses on two sites. The first site was land adjacent to Lee’s Croft and the second was land adjacent to Peace Croft. The first appeal was allowed and the second dismissed. The council challenged the validity of the first respondent’s decision to allow the first appeal. The sole ground considered was that the first respondent failed to have regard to a material consideration.
Held The application was refused
1. The council argued that the inspector misapplied the case law when he relied on Jeantwill Ltd v Secretary of State for the Environment [1992] EGCS 128 where it was held that: if a plan had been adopted and the inspector’s view rejected, then that rejected view was not a material consideration to be cited against the adopted plan. He argued that instead he should have applied Ravebuild Ltd v Secretary of State for the Environment and Hammersmith [1995] 1 PLR 26 where it was held that: the recent recommendations of a local plan inspector would ordinarily constitute a material consideration which the inspector should take into account. However the immediate case was distinguishable on its own peculiar facts from Ravebuild.
2. If the decision maker took the wrong view as to whether an issue was a material consideration, the decision could not stand. However, it was for the decision maker to apply what weight as he saw fit to a material consideration and the courts would not interfere unless the decision was Wednesbury unreasonable.
3. The decision maker must also take into account whether there was a real possibility that there might be a different outcome after consideration of the matter: see Bolton Metropolitan District Council v Secretary of State for the Environment [1995] EGCS 94 and Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 PLR 72 on the test for “materiality”.
Anne Williams (instructed by Hart District Council) appeared for the applicant; Michael Bedford (instructed by the Treasury Solicitor) appeared for the first respondent; Clive Newberry QC (instructed by Cole and Cole) appeared for the second respondent landowner.
