Town and country planning – Planning permission – National planning policy framework (NPPF) – Claimant local authority refusing planning permission for residential development – Claimant finding development of poor design in failing to take account of sensitivities of rural location – First defendant secretary of state allowing second defendant developer’s appeal and granting permission – Claimant applying for order quashing decision – Whether first defendant reaching lawful conclusion on question of poor design – Application dismissed
The claimant district council applied under section 288 of the Town and Country Planning Act 1990 for an order to quash the decision of an inspector appointed by the first defendant secretary of state allowing the appeal of the second defendant developer against their refusal of planning permission for a development of housing on seven hectares of farmland in Henfield, West Sussex. It lay outside the boundary of the built-up area, as defined in the claimant’s adopted general development control policies. A public footpath ran across it.
The second defendant’s proposal was for a development of 160 dwellings of various sizes, with landscaping and open space. New housing on that scale was not development of a kind identified by the claimant’s core strategy as normally acceptable in the countryside. The claimant refused planning permission for seven reasons, including that the proposed development was an unacceptable form of development in the countryside, would fail to protect the townscape character of the area, would result in substantial material harm to the landscape character of the site and its rural surroundings and would have significant adverse impacts on the visual amenity of the surrounding area. The second defendant appealed to the first defendant against the claimant’s decision.
An inspector appointed by the first defendant allowed the appeal, concluding that the likely adverse environmental effects of the proposed development were limited and did not outweigh the considerable social and economic benefits. The NPPF did not indicate that the development should be restricted. The development would therefore be sustainable and the presumption in favour of such development should be applied. The principal basis of the claimant’s challenge was that, in the light of paragraph 64 of the NPPF, the first defendant’s approach to the loss of views from the appeal site and the question of poor design had been unlawful.
Paragraph 64 of the NPPF provided that permission should be refused for development of poor design that failed to take the opportunities available for improving the character and quality of an area and the way it functioned.
Held: The application was dismissed.
(1) Paragraph 64 was one of 13 paragraphs in the NPPF which explained what the government wanted the design of new development to achieve. Properly understood, that paragraph did not seek to define “poor design” simply as design which “fails to take the opportunities available for improving the character and quality of an area and the way it functions”. It meant that design which, in the decision-maker’s judgment, failed in that particular respect was one kind of “poor design” and, in principle, should not be accepted. The policy in paragraph 64 was not to be read in isolation from the broader context of policy on design in which it was set, or the still broader context of national policy for delivering sustainable development. The policies in paragraphs 56 to 64 of the NPPF referred to some of the many considerations involved in the design of development. Assessing the merits of a particular proposal required the decision-maker to consider the design as a whole in judging whether it was good design or not. Such judgments were squarely within the responsibility of local planning authorities when determining applications for planning permission, and, on appeal, the secretary of state and his inspectors. They were among the most difficult to upset in proceedings under section 288 of the 1990 Act, because widely differing views on the quality of a particular design could fall within the range of reasonable judgment. The same could be said of the conclusion reached by a decision-maker when judging whether a developer had failed to take the opportunities available for improving the character and quality of an area and the way it functions and whether, for that reason, his proposal should be regarded as poor design.
(2) In the present case, the inspector had referred to the policy in paragraph 64 in the section of his decision letter where he considered “Design”. He expressed a clear conclusion on the quality of the design of the second defendant’s proposed development. He had applied the policy on good design in paragraphs 56 to 68 of the NPPF generally, and the policy in paragraph 64 specifically. He found that the design approach adopted in the scheme would broadly accord with the design objectives of the NPPF. But his conclusions on the design of the development went further than that. He concluded that the design would take available opportunities in each of the four respects identified: first, by creating areas of open space; secondly, by protecting some of the character of adjoining lanes; thirdly, by providing new rights of way; and fourthly, by using locally distinctive styles and materials. Therefore, his judgment was that that would not be a poor design in the terms of paragraph 64 which was entirely reasonable, clearly explained, and based on a secure planning assessment with which the court could not properly interfere.
David Lintott (instructed by Horsham district council) appeared for the claimants; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first defendant; Mark Lowe QC (instructed by Osborne Clarke) appeared for the second defendant.
Eileen O’Grady, barrister
