Refusal of planning consent — Residential development — Whether site in “countryside” — Whether considerations of “planning gain” properly applied — Applicant’s appeal dismissed
The appeal site comprised some six and a half acres of unused open land off Mill Street, Wem, Shropshire, quite close to the town centre. In 1973, the land had been the subject of planning permission which had since lapsed. Most of the land lay outside the limits of development in the local plan which was adopted in 1989. It adjoined the River Roden, which had a flooding problem which stood in the way of its development in the past.
Planning application was made for residential development for 80 to 90 houses which was refused after a local inquiry. The inspector dealt with the land as a potential development site and accepted that the flooding problems had been overcome. However, he held that the site was outside the development area for “planning purposes”; there was sufficient land already allocated for housing; and the proposal was premature in advance of the review of the local plan. He also found that, though the proposed link road, which would connect with a road in the adjoining development to the west so that it constituted a bypass to the town centre, would be a planning gain, it was insufficient to outweigh the objections. The Secretary of State agreed with the inspector’s conclusions and dismissed the appeal.
An unsuccessful application was made to the High Court to quash that decision. The applicant, argued, inter alia, that the inspector’s finding on the link road was unreasonable and that he was wrong in stating that the land was in the “countryside”. However, the court at first instance stated that it could not interfere with the inspector’s finding of fact that the proposed link road was not directly related to the residential development of the site: see Barber v Secretary of State for the Environment [1991]JPL 559. The judge also held that the statement that land was in the countryside “for planning purposes” meant merely that it was outside the limits of development in the town plan, ie that it was technically in the countryside.
The applicant appealed, submitting, inter alia, that proper regard to government policies for the protection of the countryside meant the “real” countryside and that the inspector had wrongly considered the question of planning gain of the link road where it was intrinsic to the scheme and not intended to offset planning objections. Moreover, the link road could be the subject of a section 106 agreement, which had not been considered.
Held The appeal was dismissed.
1. The Court of Appeal agreed with the judge’s finding that the land was in the countryside for planning purposes. That merely meant it was outside the limits of development in the town plan.
2. The inspector did not misconstrue Circular 22/83 relating to planning gain. The facts were similar in principle to those in Barber. He found as a fact that the proposed link road was not directly related to the residential development of the site.
3. The judge found that a section 106 agreement had not been put before the inspector so there had been no obligation to consider it. With leave, the Court of Appeal had allowed the applicant to adduce further evidence concerning a section 106 agreement. The case of Safeway Properties v Secretary of State for the Environment [1991] 3 PLR 91 had also not been cited before the judge. However, even if those matters had been raised, would have made no difference to the conclusion. That was a matter of planning judgement for the inspector with which the court would not interfere.
Barry Payton (instructed by Donn & Co, of Manchester) appeared for the appellant; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the Secretary of State; North Shropshire District Council did not appear and were not represented.
