Public inquiry into objections to draft local plan – Inspector recommending allocation of appeal site for residential development – Council publishing modifications not allocating appeal site for residential development – Council adopting local plan – Whether council properly considering inspector’s recommendations – Application to quash relevant part of local plan allowed
The applicants were prospective developers with interests in land at Elm Tree Farm, Whinfield, Darlington, Yorkshire (Elm Tree). In March 1994 the respondent council published a consultation draft of the Darlington Borough Local Plan. The draft local plan showed a proposal for new housing development of 17.5 ha with an estimated capacity for 400 dwellings on land at Whinfield, which included Elm Tree, and an area of 6.5 ha at Muscar House Farm (Muscar), with an estimated capacity for 160 dwellings. In 1995, when the deposit draft local plan was published, Elm Tree was excluded from allocation for housing development, thereby reducing the overall housing allocation to 10.3 ha with an estimated capacity for 300 dwellings. Objections were made to both the exclusion of Elm Tree and to the continued inclusion of Muscar.
A public inquiry was held in November and December 1995. The inspector concluded, inter alia, that the plan should be modified by the inclusion of Elm Tree in the development limit and by making it subject to policy E3 (protection of open land). The council’s development committee considered the inspector’s report and investigated potential additional housing land as a substitute for Elm Tree. In June 1997 the council published their proposed modifications which showed, inter alia, policy H5 as modified with an enlarged site area at Muscar of 14.3 ha, providing for an estimated 300 dwellings, but Elm Tree was still excluded from allocation for housing development.
Objections were made to the proposed modifications and requests were made for a further public inquiry. In October 1997 the council informed objectors that they had concluded that it was not necessary to hold a further public inquiry and that they intended to proceed to adoption without any further modifications. The applicants applied under section 287(1) of the Town and Country Planning Act 1990 for the whole or material parts of the local plan to be quashed, on the ground that the council had not acted within their powers in adopting the local plan.
Held The application was allowed.
It was illogical, and without apparent reasoning, for the council to avoid the substitution of Muscar on the basis that there was a requirement for it to meet the inspector’s recommended housing supply, and then to seek out a substitute for Elm Tree which had a large housing capacity. Furthermore, the council had an obligation to consider the report as a whole and not only the specific recommendations identified. It was clear, reading the inspector’s report as a whole, that he favoured allocation of Elm Tree as a site for housing development. The council had recognised that and it was a matter which they should have considered. However, the January 1997 report issued by the council showed that the further investigation had proceeded on the prejudged basis that the site should be substituted, but no reasons had been given by the council as to why such a substitute should be looked for. Accordingly, it could be concluded that proper consideration had not been given to the inspector’s report: see Stirk v Bridgenorth District Council (1997) 73 P&CR 439 and R v Teeside Development Corporation, ex parte Wiliam Morrison Supermarket plc [1998] JPL 23, applied.
Brian Ash QC (instructed by Eversheds, of Birmingham) appeared for the applicant in the first action; John Hoggett QC (instructed by Walker Morris, of Leeds) appeared for the applicant in the second action; Richard Humphries (instructed by Sharpe Pritchard, London agents for the solicitor to Darlington Borough Council) appeared for the respondents.
