The basic principle in this respect is that land may be developed in any way that is acceptable for planning purposes. The fact that other land exists on which the development would be even more acceptable for planning purposes would not normally justify the refusal of planning permission on the application or appeal site. However, where there are clear planning objections to the development proposals in question, it may be relevant – and indeed necessary – to consider whether there is a more appropriate alternative site elsewhere.
This is particularly so (a) when the development proposals are likely to have significant adverse effects and (b) where the major argument advanced in support of the planning application is that the need for the development outweighs the planning disadvantages inherent in it. (Instances of this type of case are developments of national or regional importance.) The evaluation of the relevant factors, however, is a matter of planning judgment for the decision maker, involving no issue of law.
In R (on the application of Botley Parish Action Group) v Eastleigh Borough Council [2014] EWHC 4388 (Admin) the claimant applied to quash a decision by the local planning authority (“LPA”) to grant planning permission for a substantial development including 1,400 homes. One of the claimant’s contentions was that there was an error in the officer’s report to the LPA’s planning committee, in that it informed the members that they were not entitled to have regard to an identified alternative site in deciding on the planning merits of the application.
The court rejected that argument, and dismissed the claim. The judge referred to the distinction drawn in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19 between two separate arguments namely (1) that the decision maker erred by taking an alternative site into consideration and (2) that the decision maker erred by failing to take an alternative site into consideration. The court in Derbyshire Dales held that, in the case of the second argument, success depended on demonstrating that there was a legal obligation to have regard to the alternative site. In other words, the alternative site was not just potentially relevant but also necessarily relevant.
The judge pointed out that there was no such legal obligation in the present case, as there would be – for instance – where there were obvious rival sites and two planning applications submitted. Then the merits of each would have to be, and could properly be, considered. Here there was no indication even that a planning application would be submitted in relation to the alternative site argued for by the claimant.
John Martin is a planning law consultant
