In Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19, Carnwath LJ (as he then was) held as follows:
(a) Alternative sites may or may not be relevant depending upon the nature and circumstance of the project, including its public importance and the degree of planning objections to the proposed site. (b) The evaluation of such factors will normally be a matter of planning judgment for the decision maker, involving no issue of law. (c) To say that consideration of a possible alternative site is necessarily relevant – so that the decision maker errs in law if he fails to have regard to it – is a different thing to saying that consideration of a possible alternative site is potentially relevant – so that the decision maker does not err in law if he has regard to it. (d) To hold that a decision maker has erred in law by failing to have regard to alternative sites it is necessary to find some legal principle which compelled him (not merely empowered him) to do so. (e) What is necessary is a statutory or policy requirement imposing a positive obligation to consider alternatives. (f) If there is no such requirement, whether or not to consider alternatives will remain a matter of planning judgment on the facts of the case.
One of the grounds of challenge to the decision of the local planning authority (“LPA”) in R (on the application of Smech Properties Ltd) v Runnymede Borough Council [2015] EWHC 823 (Admin); [2015] PLSCS 105 to grant planning permission for a large mixed-use development (including housing) on land in the green belt was that the committee report contained a material misdirection on alternative sites, namely that in this case they were not a material planning consideration.
Citing Derbyshire Dales, the court rejected that ground. (1) There was nothing in statute law or planning policy that compelled the LPA, expressly or impliedly, to have regard to alternatives sites. (2) It was axiomatic that, generally, the fact that other land existed upon which the development proposed would be more acceptable for planning purposes did not justify the refusal of planning permission upon an application site. (3) The fact that the LPA was dealing with inappropriate development in the green belt did not, in itself, require the consideration of alternative sites. (4) No other site had been suggested by the claimant or any objector as an alternative to the development proposal as a whole. (5) There was therefore nothing that compelled the consideration of alternative sites.
That being so, the court concluded that – as a matter of planning judgment – the advice in the committee report had been reasonable.
John Martin is a planning law consultant
