Planning permission – Planning policy – Green belt – Local plan recommending sites for potential housing allocation – Claimant wishing to develop land without potential allocation – Claimant objecting to allocation of other sites and refusal of its own site – Defendant authority adopting plan – Claimant applying for judicial review – Whether defendants failing to have regard to relevant national planning policy – Application granted
The claimant owned land that it wanted to develop for residential purposes. That land was not allocated in the defendant authority’s revised draft local plan for new housing development. The claimant objected to the fact that its land had not been allocated for that purpose and also objected to many of the sites that had been so allocated. Following a public inquiry, the planning inspector produced a report recommending that some sites should be deleted from the plan and others included, but the claimant’s land was still excluded. Despite further objections, the revised plan was adopted.
In formulating the local plan, the defendants were under a statutory duty to have regard to regional or strategic planning guidance in accordance with section 12(6) of the Town and Country Planning Act 1990. In the present context, they were obliged to have regard to PPG 3, RPG 10 and the structure plan second review. PPS 3 was also a material consideration.
The claimant applied, inter alia, under section 287 of the 1990 Act, seeking to quash the defendants’ decision to allocate two particular green-belt sites for potential housing development.
The claimant contended that the defendants had failed to have regard to relevant national planning policy in adopting the plan. In particular, as a matter of fact, it was unlikely that the two sites could be fully developed within the specified period pursuant to PPG 3, which provided that sufficient sites should be shown on the plan’s proposals map to accommodate at least the first five years of housing development proposed in the plan.
Held: The application was granted.
Those parts of the local plan that included the disputed sites for potential housing allocation would be quashed.
In deciding whether sites could be developed within a particular time frame, a local authority were exercising a judgment based upon matters properly relating to planning and factors closely connected to it. A court had no power to review the exercise of that judgment unless it could be demonstrated that the judgment was unreasonable or irrational.
One way in which it was possible to judge whether a local planning authority were making an unreasonable judgment was to see how they responded to objections to that judgment. In the present case, the relevant phasing period had already begun and the defendants had produced no evidence that provided any basis for a conclusion that either of the disputed sites would be granted planning permission in the near future. Moreover, they had said nothing to suggest that they had addressed their mind to whether the allocation could be implemented in full within the specified period.
In those circumstances, as a matter of judgment, they were not entitled to conclude when the local plan was adopted that its phasing arrangement would come to fruition. Accordingly, the defendants’ judgment was irrational and unreasonable in that they were acting unlawfully in ignoring or failing to have regard to material policy guidance: Save Britain’s Heritage v Number One Poultry Ltd [1991] 3 PLR 17 applied.
Peter Village QC and Robert White (instructed by Berwin Leighton Paisner LLP) appeared for the claimant; Patrick Clarkson QC and Zoe Leventhal (instructed by the legal department of Tewkesbury Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
