Planning permission — Land formerly part of school playing fields — Second respondent entering into conditional contract for purchase of appeal site — Condition stipulating planning permission for housing — Application of competing uses test — Whether consequence of refusal of planning permission would mean appeal site’s use for public recreation — Inspector allowing appeal against refusal of permission — Inspector’s decision upheld
Outline planning permission was sought by the second respondent, Barratt Southampton Ltd, for residential development of 30 houses on land which was formerly part of the school playing fields of Burton Primary School, Salisbury Road, Burton, Christchurch, Dorset. The land belonged to Dorset County Council as education authority which, in 1983, declared part of the playing fields surplus to requirements. The contract for purchase by Barratt was conditional on planning permission being granted. However, planning permission was refused by Christchurch Borough Council on the grounds, inter alia, that it was contrary to the proposed policy statement on undeveloped land which sought to resist the development of open spaces. The refusal was in June 1989. In September 1989, the local authority resolved to “firmly resist” development of open-space areas until consideration of need had taken place as part of the preparation of local plans. The inspector allowed the appeal and granted outline planning permission, stating, inter alia, that the policy statement, as non-statutory guidance, had only been given slight weight. It had imposed a firm local presumption against virtually all urban development and that was in conflict with Government policies. Further, the onus was on the planning authority to demonstrate clearly that there would be harm to interests of acknowledged public importance. The inspector stated that it was common ground that the test to be applied was the one laid down in Westminster City Council v British Waterways Board (1984) 272 EG 1279, ie whether in a contest between the planning merits of two competing uses, “to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must…be necessary…to show a balance of probability that if permission is refused for use B, the land in dispute will be effectively put to use A”. In the event, the inspector concluded that, even if the appeal were dismissed, it was improbable that the appeal site would be effectively put to the use of a public open space. The local authority applied to the High Court to quash the inspector’s decision.
Held The application was refused.
1. It was not appropriate to go through an inspector’s decision letter with a fine toothcomb. The letter was to be considered as a whole.
2. The policy context applicable at the time of the instant case was very important and gave a presumption in favour of development.
3. The local authority’s resolution placing an embargo on development of open spaces until the adoption of the local plan had only been given slight weight by the inspector. However, he was entitled to take that view: it was a matter for his judgment in the case of non-statutory policy.
Timothy Straker (instructed by Sharpe Pritchard, agents for the solicitor to Christchurch Borough Council) appeared for the local planning authority; Philip Havers (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; and Henry Setright (instructed by John Cawthorn, of Cambridge) appeared for Barratt Southampton Ltd.
