A council challenging a grant of planning permission for 160 homes in its area has been criticised for belatedly putting into evidence its own alternative scheme, which it claimed would have less of an impact on landscape views from a footpath crossing the site.
Lindblom J rejected Horsham district council’s claim, and disapproved of its attempt to rely on details of an alternative scheme that was not before the inspector who granted planning permission last June.
The judge said: “It is not a general principle in planning law that an acceptable proposal for development should be turned away because a better one might be put forward instead. This case shows why that is so.
“The court has always deprecated attempts to re-open discussion of the planning merits by introducing such material in affidavits and witness statements. Doing this in an effort to bolster a legal challenge, or to strengthen resistance to it, is both inappropriate and futile.
“It is not acceptable for any party in proceedings such as these to burden the court with contentious illustrative material which was not before the decision-maker when the challenged decision was made. Nor should the parties think that such evidence will persuade the court to look more sympathetically upon an advocate’s submissions on alleged errors of law. It will not.
He said that it was quite impossible for the council to complain of any procedural unfairness on the part of the inspector, adding: “If the council now regrets not having taken the opportunity it had to produce its ‘Alternative Scheme’ in evidence at the inquiry, the inspector is not to be criticised for that.”
Barratt Southern Counties won permission on appeal to build 160 dwellings of varying sizes on seven hectares of farmland on the northern side of West End Lane, Henfield, West Sussex.
But the council alleged both procedural unfairness, and that, in the light of government policy in paragraph 64 of the National Planning Policy Framework (NPPF), the inspector had adopted an unlawful approach to the loss of landscape views.
The judge, though, said that the inspector’s decision did not seem to be defective in any way.
He said: “It cannot be suggested that the inspector failed to consider the evidence and submissions put before him on views to, within, and from the site. On the contrary, he did so with conspicuous care. His treatment of views was a recurrent theme in his discussion of the planning merits. But it was far from being the only one, and its significance in his decision should not be exaggerated.
“In my view the inspector exercised his judgment entirely lawfully on the evidence before him. In the light of the evidence the conclusions to which he came were undoubtedly open to him. He did not fail to have regard to any material consideration, nor did he have regard to any immaterial consideration, nor were any of his conclusions unreasonable.”
The inspector had concluded that the limited harm caused would be outweighed by the significant benefits, in the light of a shortfall of at least 36% in the council’s five-year housing supply.
Horsham District Council v Secretary of State for Communities and Local Government Planning Court (Lindblom J) 23 January 2015
David Lintott (instructed by the Head of Legal and Democratic Services) for the claimant
Richard Kimblin (instructed by the Treasury Solicitor) for the first defendant
Mark Lowe QC (instructed by Osborne Clarke) for the second defendant
