Metropolitan open land – Development – Outline planning permission – Party seeking permission for inappropriate development – Council challenging grant of permission – Whether very special circumstances justifying development – Application dismissed
The second defendant developer applied for outline planning permission for residential development on the site of a disused plant nursery that had been designated as metropolitan open land (MOL). The claimant council rejected the application but by the first defendant’s inspector allowed an appeal against that decision.
Under the relevant UDP policy, the permission would not be given for inappropriate development within the MOL unless very special circumstances outweighed the harm by reason of inappropriateness or otherwise. It was common ground between the parties that the proposed development would be inappropriate. However, the inspector took the view that a shortage of land that would be suitable to reduce the deficit in housing supply elsewhere in the borough constituted very special circumstances, which justified the removal of the appeal site from the MOL. Planning permission was therefore granted, subject to conditions.
The claimants applied, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision on the basis that he had reached it without identifying any “material considerations” not already reflected in the UDP and the decision to adopt it as required by section 38(6) of the Planning and Compulsory Purchase Act 2004. They argued that there was little difference between the information on housing supply put before the inspector at the inquiry and the information already considered by the local plan inspector and the claimants in the process of adopting the UDP and setting the boundaries of the MOL.
Held: The application was dismissed.
Given a continuing serious shortfall in housing supply and the contemplation in the work leading to the UDP that the appeal site in particular would need to be released if the shortfall persisted, the inspector’s conclusion that very special circumstances for the release of the appeal site existed was justified.
The legislation had introduced a requirement that the decision maker should recognise the priority of the development plan and the decision maker could be faulted if he or she failed to give effect to that requirement. Although the weighing of material considerations was a matter for the decision maker, the re-weighing of the same material considerations that had already been weighed in the plan process was not the exercise contemplated by the words “unless material considerations indicate otherwise” in section 38(6) of the 2004 Act. If it were clear that a consideration had been taken into account when adopting the plan, no reasonable inspector could properly conclude that the identical consideration was material, or that any weight should be put upon it, in considering an appeal in relation to a particular site: Edinburgh City Council v Secretary of State for Scotland [1997] 3 PLR 71 considered.
However, once a circumstance had changed and the consideration was not quite the same, or other new relevant circumstances arose, the significance or otherwise of the differences became a matter for the inspector’s judgment with which the court would not interfere unless it was unreasonable. The inspector might err in law if he or she failed to contemplate whether the consideration said to be material was significantly different from one already taken into account in the adoption of the plan.
Stephen Whale (instructed by the legal department of Bromley London Borough Council) appeared for the claimants; Paul Brown (instructed by the Treasury Solicitor) appeared for the first defendant; Garrett Byrne (instructed by Boyes Turner & Burrows, of Reading) appeared for the second defendant; Christopher Boyle (instructed by Davies Arnold Cooper) appeared for the interested party.
Eileen O’Grady, barrister
