Town and country planning – Planning permission – Claimant applying to quash decision dismissing appeal against refusal of planning permission – Whether inspector failing to determine application in accordance with development plan – Whether inspector failing properly to apply national planning policy framework (NPPF) – Whether inspector reaching irrational and unreasonable conclusions – Whether inspector wrongly failing to have regard to previous appeal decision – Application dismissed
The claimant applied for planning permission for change of use from stables to offices on land at the rear of Common Road, Kensworth, Bedfordshire. The site was within the area of the second defendant local authority and within the green belt.
The second defendants refused permission for the proposed development. The claimant appealed to the first defendant secretary of state under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the first defendant dismissed the appeal following exchanges of written representations in accordance with the Town and Country Planning (Appeals) (Written Representation Procedure) (England) Regulations 2009 (SI 2009/452).
The claimant applied to quash that decision under section 288 of the 1990 Act contending that the inspector had: (i) failed to have regard to the statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application for planning permission in accordance with the development plan unless material considerations indicated otherwise; (ii) failed properly to interpret and apply the NPPF with respect to the re-use of buildings in the green belt; (iii) reached irrational and unreasonable conclusions unsupported by the facts and/or evidence and/or professional assessment; and (iv) failed to have regard to a previous appeal decision relating to the site or failed to give adequate reasons for departing from it.
Held: The application was dismissed.
(1) The development plan had to be read as a whole as policies might pull in different directions. Most fundamentally, the inspector had found that the proposal before him was for inappropriate development in the green belt as it would represent an encroachment of urban-type development into the countryside and therefore would conflict with one of the purposes of including land within the green belt. On a fair reading of the development plan as a whole, the inspector had found that the appeal proposal before him was not in accordance with the development plan. He had properly identified that the development plan comprised the local plan review and that its relevant policies appeared to be consistent with the main thrust of national policy in the NPPF and so should be afforded substantial weight. No policies on the green belt in the local plan review had been identified which were mutually irreconcilable with the policies in the NPPF in a way which was more permissive of the grant of planning permission and which he therefore had expressly to consider in order to see whether one policy should give way to the other: R v Rochdale Metropolitan Borough Council., ex parte Milne [2000] EWHC 650 (Admin) and R (on the application of Laura C) v Camden London Borough Council [2001] EWHC (Admin) considered.
The law did not require inspectors to include in their decisions an express conclusion whether or not a proposal was in accordance with the development plan or to adopt any particular mantra. Although it had to be clear at the culmination of the decision-making process what the eventual judgment was against the development plan as a whole, the eventual judgment could be implied from a fair reading of the decision letter as a whole: City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71, R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878; [2014] PLSCS 198; [2015] 1 WLR 2367, Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) and Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) considered.
(2) Paragraph 89 of the NPPF was not relevant to the proposal before the inspector as it did not involve the construction of a new building. Furthermore, the inspector was not relying on any impact on the openness of the green belt but had reached his conclusion on inappropriateness because the type of commercial development proposed and the use of the building as offices would represent an encroachment of urban-type use and development into the countryside. He did not therefore need to consider whether any condition could control the use of the land around the building: he was concerned with the nature of the use proposed by the development. Having found that there would be substantial harm to the green belt, it was for the inspector to determine whether new jobs and support for the economy would clearly outweigh that harm.
(3) Whether the living conditions of neighbours would be unacceptably affected by the noise and disturbance from traffic movements were quintessentially planning judgments for the inspector to reach and there was ample material to enable him to do so.
(4) The inspector had not referred to an earlier decision in relation to the same site which related to the construction of a new dwelling on the site of an earlier barn. The present proposal was for the change of use of an existing building and an assessment of the impact on the countryside of a new building in one location was sufficiently different from an assessment of the effect of a change of use of an existing building in a different location, albeit close by, and the earlier decision was not sufficiently material, to oblige the inspector to deal with the earlier decision in his decision letter. Moreover, the proposal before the inspector was sufficiently different from the earlier proposal that he was not necessarily disagreeing with the earlier inspector so as to oblige him to deal with that earlier decision: St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin); [2015] PLSCS 92 applied.
Jonathan Darby (instructed by Holmes & Hills LLP, of Braintree) appeared for the claimant; Stephen Whale (instructed by the Government Legal Department) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
Read a transcript of Gill v Secretary of State for Communities and Local Government and another here
