It is not disputed that, in principle, a grant of planning permission may set a precedent for further developments of the same character. Such a possibility, accordingly, is capable of amounting to a material consideration in the determination of a planning application or an appeal. While a single identified development may be unlikely to have a harmful effect upon its immediate area, a proliferation of similar developments may well do. That said, the courts have also held that mere fear or generalised concern of a precedent effect is not enough; there must be evidence in one form or another for the reliance on precedent.
Where inappropriate development in the green belt is proposed, the risk of creating a precedent is potentially a material consideration justifying even further weight. This was stressed by the court in Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin); [2002] PLSCS 88. There the High Court allowed an appeal under section 289 of the Town and Country Planning Act 1990 against the decision of an inspector granting planning permission, based on very special circumstances, for the siting of a gypsy caravan on land in the green belt.
In R (on the application of Holder) v Gedling Borough Council [2014] EWCA Civ 599; [2014] PLSCS 147, the appellant had sought unsuccessfully to quash a planning permission granted by the local planning authority for the erection on land in the green belt of a single wind turbine with a maximum ground-to-tip height of 66m. His principal ground of challenge was that the planning officer, in his report to the planning committee, had referred expressly to the risk that the grant of planning permission would set a precedent for further turbine development nearby as a “non-material planning issue”. He appealed to the Court of Appeal.
The appeal judges held that the planning officer’s approach was flawed, and that this vitiated the planning committee’s decision. Precedent was a live issue. The planning officer’s report had to be construed having regard to how a reasonable planning decision maker would understand it. In this case, the wording used would only be understood as meaning that the risk of creating a precedent was, as a matter of law or policy, of no materiality whatsoever.
John Martin
