Development – Change of use – Council refusing application – Planning policy requiring compliance with development plan – Inspector allowing appeal – Whether inspector misdirecting himself and acting beyond powers – Whether inspector reaching irrational and unreasonable conclusions – Application dismissed
The second defendant developer applied for planning permission for a change of use of premises to use as a children’s play centre. The claimant local planning authority refused planning permission. The second defendant appealed to the first defendant, pursuant to section 78 of the Town and Country Planning Act 1990 (as amended by the Planning and Compulsory Purchase Act 2004). Following written representations from the parties and a site visit, an inspector appointed by the first defendant allowed the appeal, even though local plan policies were against such developments because of the resulting increase in car use.
The claimants applied to court, under section 288 of the 1990 Act, for an order quashing the decision letter. They contended that the inspector’s decision went beyond the powers of the first defendant, in that the inspector had: (i) misunderstood and misdirected himself with regard to the national guidance in PPS 6; (ii) made factual errors and relied upon them in reaching his conclusions; and (iii) reached irrational and unreasonable conclusions.
In particular, he had correctly identified the consideration of “need” for the development as one of the main issues, but had then stated that need for leisure facilities could not be measured in a quantitative way; whereas PPS 6 specifically stated that greater weight should be given to the quantitative need of leisure facilities and set out exactly how that need was to be quantified.
Further, the inspector had misdirected himself as to the meaning and scope of Local Plan Policy R24. In failing to reach a conclusion as to whether the proposal was specifically compliant or otherwise with policy R24, the inspector had failed properly to assess whether the proposal accorded with the development plan, pursuant to section 54A of the 1990 Act.
Held: The application was dismissed.
Although an inspector had to indicate whether a proposed development was outside of, or contrary to, the relevant development plan, when considering whether a proposal conflicted with the development plan, the relevant policies had to be looked at together to establish whether there had been a failure to comply.
It was not always easy to determine whether there had been such a failure with development plan policy and conflicting considerations in planning policies often needed to be reconciled.
In the present case, the inspector had been faced with deciding whether, on the material before him and in the light of the requirements of the development plan, the proposed development should be allowed to proceed. It appeared from the decision letter and surrounding circumstances that the inspector had carried out a detailed consideration of the relevant development plan policies, national guidance and the evidence provided by the parties. He had been entitled to reach the conclusion that he had, given that permission for a development outside of, or contrary to, the development plan did not have to be refused if countervailing considerations existed.
Matthew Copeland (instructed by the legal department of Darlington Borough Council) appeared for the claimants; Jonathan Auburn (instructed by the Treasury Solicitor) appeared for the first defendant; Timothy Straker QC and Christopher Buttler (instructed by Russell Cooke) appeared for the second defendant.
Eileen O’Grady, barrister
