Residential development – Gardens – Outline planning permission – Local authority refusing planning permission for housing development on residential garden land — Planning inspector allowing appeal against refusal — Local authority applying to quash decision – Whether inspector giving adequate reasons for decision – Whether inspector taking account of irrelevant factors — Application allowed
The claimant local authority applied under section 288 of the Town and Country Planning Act 1990 to quash a decision of defendant secretary of state, the effect of which was to grant outline planning permission to the interested party for the demolition of two bungalows and the development of eight detached houses and a new access road on residential garden land.
The claimants had refused permission on the ground that the proposed development would diminish the character of the area and the appearance of the street scene, contrary to planning policy statement (PPS) 3 and the claimants’ policy statement H4. The government had earlier amended PPS3 to exclude private residential gardens from the definition of “previously developed land” in PPS3 to stop “garden grabbing”.
The defendant had appointed a planning inspector to hear the interested party’s appeal against the refusal of planning permission. The inspector identified the main issue he had to determine as “ … the effect of the development on the character and appearance of the area in the context of the amendments to the status of garden land in [PPS3]”.
The interested party argued that the proposed development of the site would contribute to the claimants achieving their housing supply target and could be treated as a “windfall site”. However, the claimants relied on their policy H4 to support their argument that a windfall site had to be on previously developed land to be classified as such.
The inspector recommended the grant of planning permission on the basis that the land in question was suitable as a windfall site. Little weight could be placed on policy H4 since it had not been adopted and it was likely that the changes to PPS3 would give rise to issues not envisaged when H4 was being prepared. Further, the gardens were large in relation to the properties they served and did not appear to be intensively used and the site had been granted planning permission on an earlier occasion under different planning policies.
Held: The application was allowed.
(1) The structure of, and approach to, a decision were matters largely for the judgment of the particular decision-maker. The fact that policy H4 had not been adopted (albeit promulgated in 2004) might be a good reason for attaching less, or even no, weight to it. However, it was difficult to imagine what potential inconsistency the inspector had in mind between policy H4 and PPS3, as amended. He did not explain and his reasons remained obscure, despite his express reference in his main issue to the context of amendments to the status of garden land. There was nothing in the PPS3 amendments to support the notion that it would only be small and intensively used gardens that should not be grabbed: Edinburgh City Council v Secretary of State for Scotland [1997] 1 WLR 1447 and ELS Wholesale (Wolverhampton) Ltd v Secretary of State for the Environment (1987) 56 P & CR 69 considered.
(2) Where the decision-maker had taken into account an irrelevant factor, even though it might not be his dominant reason, the court should quash the decision unless it was clear that the same conclusion would have been reached in any event. Therefore, in the present case, the court had to ask itself whether it was clear that the same decision would have been reached on valid reasons, and planning permission granted, even if none of the following factors had played a part in coming to that conclusion: the reference to a windfall site; the potential, but unidentified, inconsistency apparently perceived between policy H4 and PPS3; and the inspector’s apparent view that it was for the claimants to show a compelling case that the location was unsustainable. Each of those factors involved an error of law and/or was irrelevant to the determination the inspector had to make.
In the court’s view, it could not determine what the outcome would have been on those counter-factual assumptions. In particular, the court could see no other valid reason that would have pointed towards, still less justified, the grant of planning permission: Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 applied.
Caroline Bolton (instructed by Dartford Borough Council) appeared for the claimants; Cain Ormonroyd (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister