Local plan — Protection of countryside — Inspector recommending removal of commercial buildings from protected area — Claimant contending that council had failed to implement recommendations — Whether council’s interpretation of recommendations irrational — Whether council entitled to reject claimant’s suggested new policy — Claim dismissed
The claimant was the leasehold owner of both an airfield, which was bounded to the north by commercial development, and a nearby 0.8 ha piece of land upon which were sited two small single-storey buildings (the CM site). The entire area had been designated as part of an area of landscape protection under local plan policy. However, following the publication of a replacement local plan and a subsequent public inquiry, an inspector recommended, inter alia, that landscape protection should be removed from certain commercial buildings. Having considered the inspector’s recommendations, the defendants published their proposed modifications to the replacement plan. The claimant objected, contending that the defendants had failed properly to implement the inspector’s recommendation concerning the removal of the commercial area from the scope of the proposed protection policies. The claimant also proposed a new a criteria-based policy to control development on the airfield. The defendants accepted some of the objections and made various amendments to the replacement plan, but the CM site remained within the protected area. The council also considered the proposed airfield policy, but refused to adopt it on the advice of planning officers.
The claimant challenged the validity of the replacement plan under section 287(1) of the Town and Country Planning Act 1990. It argued that the continuing inclusion of the CM site within the protected area showed that the defendants had failed to take sufficient account of the inspector’s recommendations. It contended that, further, the defendants had erred in law in refusing to adopt its proposed policy because the advice of the planning inspectors had been materially flawed.
Held: The claim was dismissed.
As a general principle, the courts would intervene only where the judgment of the decision maker had been perverse or otherwise bad in law. Equally, it was incumbent upon a local planning authority correctly to interpret and apply their own policies: R v Derbyshire County Council, ex parte Woods [1997] JPL 958 considered.
On the evidence, the defendants had had particular regard to the inspector’s use of the expression “area of commercial buildings” and had reasonably perceived it as not applying to the CM site, which was an open and almost entirely undeveloped site The actual meaning and the proper interpretation of the inspector’s recommendations with regard to the area in question was a matter primarily for the defendants, subject only to challenge on grounds of irrationality. There was no proper basis for stigmatising the defendants’ interpretation as irrational: Braithwaite v Doncaster Metropolitan Borough Council [2000] EGCS 42 considered.
The claimant’s proposed airfield policy was a discrete and new proposal for a different policy that had not been put forward at the deposit draft stage or considered by the inspector. Accordingly, the defendants were under no obligation to take account of it at this late stage. Nevertheless, they had set out their response in a clear manner, and their reasons for refusing to adopt the policy had been reasonable and soundly based. Any proposal for the development of land within the landscape setting had to be considered against other applicable policies in the replacement plan and in the light of other material considerations.
John Pugh-Smith (instructed by Penningtons) appeared for the claimant; Nathalie Lieven (instructed by the solicitor to Salisbury District Council) appeared for the defendants.
Eileen O’Grady, barrister
