Town and country planning – Planning permission – Green belt – Claimant company applying for planning permission for residential development – Second defendant local authority refusing application – Inspector recommending grant of permission on appeal – First defendant secretary of state rejecting inspector’s recommendation – Claimant seeking order quashing decision to grant permission – Whether first defendant acting unfairly – Whether sufficient factual basis for first defendant disagreeing with inspector – Whether first defendant taking irrelevant considerations into account – Application dismissed
The second defendant local authority adopted a local plan formulating its detailed policies for the development and use of land in their area. The plan included a map which clearly designated the appeal site, 7.4 hectares of agricultural land in Essex, as part of the green belt. The local plan contained specific policies relating to the development of the green belt and provided that “…within the green belt identified on the proposals map permission will not be given, except in very specific circumstances, for the construction of new buildings or for the change of use of land or for the extension of existing buildings…”.
The second defendants refused the claimant company’s application for planning permission for a residential development on the site after that policy had lapsed. The claimant appealed and an inspector appointed by the first defendant secretary of state conducted an inquiry and recommended that planning permission be granted. Following that recommendation, the local member of parliament (MP) wrote to the first defendant expressing her opposition to the development and the first defendant rejected the inspector’s recommendation and refused planning permission.
The claimant applied under section 288 of the Town and Country Planning Act 1990 for an order quashing that decision. It contended that: (i) the lapse of the original policy meant that there had been no present policy for a designation of green belt in the area; (ii) the first defendant had failed to act in accordance with rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) (Rules) 2000 (SI 2000/1624) or the principles of natural justice in failing to disseminate to the claimant the MP’s letters which had been received after the end of the inquiry for comment or response; (iii) there had been an insufficient factual basis for the first defendant’s decision not to accept the inspector’s recommendation; and (iv) the first defendant had taken account of irrelevant considerations when deciding whether the grant of planning permission in this case would set a precedent and in confusing a development plan review with special circumstances to justify development within the green belt.
Held: The application was dismissed.
(1) The meaning of a planning policy was for the court to determine objectively, having regard to the language used and the context and purpose; although plans were not to be construed as if they were a statute or contract and might refer to matters of planning judgment. Although it would have been neater and simpler for a modified version of the original policy to remain in existence and bring the proposals map directly into play as an element of the policy, that had been achieved indirectly because the saved policies referred to the green belt and there had therefore been policies in existence to which the proposals map could attach and form part of the policies. Accordingly, the first defendant had been correct to conclude that there had remained a green belt within the relevant area and as a matter of planning policy: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 and R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin); [2013] PLSCS 217 considered.
(2) Rule 17(5) of the 2000 Rules only required the first defendant to afford the claimant an opportunity to make representations on the representations made by the MP if he was for that reason disposed to disagree with a recommendation made by the inspector. It had been apparent from the decision letter read as a whole and in good faith that the MP’s representations had not been the reason why the first defendant had disagreed with the inspector.
(3) In the decision letter the first defendant had respected the factual findings of the inspector and the areas of disagreement had been related to the planning policy conclusions to be drawn from them. In each case, there had been some evidential material to support the first defendant’s conclusions: Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433; (1971) 218 EG 1163 considered.
(4) The first defendant was right to conclude that the reference to “undesirable precedent for similar developments which would seriously undermine national policy” did not amount to an irrational procedurally unfair conclusion imported at a late stage into the debate. The question of setting precedents was normally not an issue for planning inquiries that turned on the application of particular policies to particular sites and case by case justification for the development. However, read as a whole and in context, the first defendant was indicating the importance of green belt protection in the national planning policy framework and the cumulative harm identified in the decision letter was not outweighed by the admittedly significant benefit of housing including affordable housing.
(5) A decision maker who refused to contemplate an exception until a revised plan was in place allocating the site for housing development would be misdirecting themselves. The detailed consideration of harm and benefit in the decision letter had reflected the debate before the inspector and would have made little sense if the absence of a local plan for housing allocation to the appeal site had been considered determinative. There had been no legal error. The decision letter had merely been assigning weight to the preservation of the green belt from harm by piecemeal development.
Peter Goatley (instructed by Irwin Mitchell) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
