Town and country planning – Planning permission – Statutory framework – Claimant seeking to quash decision of inspector appointed by first defendant secretary of state to dismiss appeal against refusal of planning permission by second defendant local authority – Whether inspector failing to determine appeal as required by statutory framework requiring – Whether inspector failing to give adequate reasons for finding material harm to residential amenity – Whether inspector wrongly failing to consider imposing condition relating to emergency access – Application granted
The claimant developer applied for planning permission for a proposed development of 114 dwellings on 4.9 hectares of land at Walton Heath, Common Lane, Stone, Staffordshire, 40% of which were to be affordable housing, together with a new public open space, pedestrian corridors and other ancillary features. The site comprised two fields on the south-western edge of Stone, the second largest settlement in the second defendant local authority’s area. It adjoined an existing modern residential development off Common Lane, which included a short cul-de-sac, the end of which almost abutted the site.
The second defendants refused permission on the ground that the amount of additional traffic generated by the proposed development would result in unacceptable levels of noise and disturbance that would have a significantly harmful effect on the living conditions of the neighbouring residents. An inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal against that refusal on the basis that the acknowledged benefits of the proposed scheme did not outweigh the harm to other residents resulting from the increased levels of traffic noise and disturbance.
The claimant applied, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision. It contended that the inspector had failed to: (i) determine the appeal as the statutory framework by failing to consider and decide whether the conflict between the proposed development and the relevant policy of the development plan had been such that the development had not accorded with the policy and the development plan as a whole; (ii) give adequate reasons for finding that the residential amenity of those living in the area would be materially harmed as a result of the additional traffic noise; and (iii) take into account the fact that the delivery of emergency access could be secured by a condition attached to a grant of planning permission.
Held: The application was granted.
(1) Whilst being sensitively aware of the need to read an inspector’s report in a broad and sensible way and to avoid imposing too high a standard of expectation on him or her, after careful consideration, on the facts of the present case, the court was persuaded that the inspector had failed to grapple with the issue of whether the development had been in accordance with the development plan as a whole. That error had clearly been material. The inspector had carefully assessed the nature of the noise and disturbance in the area at present and with the proposed development, and had been entitled to conclude that there would be an unacceptable diminution in the residential amenity of the area residents as a result of the development in conflict with development plan policy. However, having found the development to have been in conflict with one policy within the development plan, it was necessary for the inspector to proceed to determine whether the development was in accordance with the plan as a whole: R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878; [2014] PLSCS 198 distinguished.
(2) The inspector was bound to take into account the acoustic evidence and had been entitled to take into account the results of her own site visit and her own judgment to form a view as to how living conditions in the relevant houses would be affected by the development. Having carefully considered the nature of the noise and disturbance, the inspector had been entitled to conclude that there would be an unacceptable diminution in the residential amenity of the close residents as a result of the development. That was a classic evaluative judgment for the inspector to make as the planning decision maker.
(3) The inspector had erred in weighing in the balance against the proposed development the fact that it did not provide for an emergency access. That problem could have been dealt with by attaching conditions to a grant of planning permission. However, in the light of the court’s findings on the first ground of challenge, it was unnecessary to determine whether that error had been material.
Hugh Richards (instructed by Gateley LLP) appeared for the claimant; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
