Just as there are circumstances, albeit these are comparatively restricted, in which the existence of an alternative site may become a material consideration in the determination of a planning application, the same principle may also apply where clear planning objections could be overcome by repositioning the proposed development within the application site itself.
In R (on the application of Governing Body of Langley Park School for Girls) v Bromley London Borough Council [2009] EWCA Civ 734; [2009] PLSCS 246, a girls’ school and a boys’ school occupied adjoining sites within an area of metropolitan open land (MOL). The development plan provided that the MOL was to be given the same protection as the green belt and that planning permission should not be granted for inappropriate development save where very special circumstances outweighed the harm that would be done to the MOL by reason of the inappropriateness of the development or any other harm. It was common ground that “any other harm” would include injury to the openness and visual amenity of the MOL.
The boys’ school commissioned a feasibility study for rebuilding the school. It identified three options, and although it compared their merits, it did not deal with their relative effects on the openness and visual amenity of the MOL. The boys’ school applied to the council for planning permission for what amounted to a variation of option 3. The girls’ school objected on the basis that that was the most harmful because it would involve positioning the new buildings on an open part of the site. It would be less damaging to proceed by way of option 1, which would have involved rebuilding the school in its existing location.
The council granted planning permission without considering option 1. It considered that the educational need for the rebuilding scheme outweighed any harm to the MOL. The girls’ school applied unsuccessfully for judicial review of that decision, and then appealed to the Court of Appeal. The appeal was allowed and the planning permission was quashed.
The argument advanced by the girls’ school was that the council had left out of account a material consideration by failing to consider whether option 1 offered a less harmful solution. The council’s main contention was that it had to decide the planning application before it and, save in exceptional circumstances, it did not have to consider an alternative proposal.
The court held that, in this case, no exceptional circumstances were required in order to justify taking account of the alternative proposal. It was a highly material consideration. The council had erred in law and ignored relevant matters when deciding to leave it out of account. The fact that option 1 did not form part of the planning application was irrelevant.
Possibly, the lesson to learn here is that where there are no clear planning objections to a proposed development, alternative proposals – whether for an alternative site or for alternative positioning within the same site – will normally be irrelevant. However, where clear planning objections subsist, and a need for the development is claimed, it is relevant to consider whether the objections might be overcome by an alternative proposal.
John Martin is a freelance writer
