In R (XY) v Maidstone Borough Council & Anor [2016] EWHC 1436 (Admin) failure to recognise the frailty of existing uses was held to be fatal to the decision that the proposals would not have an unacceptable affect on landscape character.
Perfect Place (owned by Mr Perfect) benefitted from permanent planning permission for a mobile home, touring caravan and barn, subject to a condition controlling numbers. It was surrounded by other sites used for the same purpose, either without permission or in breach of condition. Applications to regularise the uses remained undetermined. The defendant’s planning committee considered Mr Perfect’s application on the basis that the site had planning permission for gypsy and traveller use and that the character of the area around the site was already made up of several gypsy and traveller sites, influencing the prevailing landscape character of the area.
His Honour Judge Price Lewis QC held that it was material to the overall assessment of impact on the character of the area that the surrounding sites were either in unlawful use (and therefore susceptible to enforcement action) or had the benefit only of temporary planning permission. As such, the character of the area could change if the authority took action or if the temporary permission expires. That information may have caused members to reach a different decision, for example a grant of a temporary planning rather than a permanent one. As a result members of the Committee were significantly misled “about material matters and there was no possibility on the facts to conclude that the planning permissions for the adjacent regularisation would have likely to be granted.”
Applying the requirement that there must be a ‘real possibility’ that consideration of issues ‘would have made a difference’ to the decision (applying Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P. & C.R. 343) he could not certify it as highly likely that the outcome would not have been substantially different for the purposes of section 31(2)A of the Senior Courts Act 1981 if the Committee members had been properly briefed.
The remaining grounds were dismissed, including the claim that the scheme formed part of a single project with pending applications on nearby sites for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 simply by virtue of their proximity.
Roy Pinnock is a partner in the planning and public law team at Dentons
