Planning application – Development plan – Claimant appealing against refusal of permission for development – First defendant appointing inspector to determine appeal – Council adopting unitary development plan after refusal of permission and before inspector’s decision – Whether inspector properly taking account of changes in development plan – Application dismissed
The claimant applied to the second defendant council for planning permission to erect a two-storey side extension to a house. His application was refused in March 2006. At that time, the development plan for the area was the 1996 Gwent structure plan, although a draft unitary development plan (UDP) had been deposited. The decision letter referred to both the structure plan and the UDP.
The claimant appealed to the first defendant, which transferred the authority to determine the appeal to an inspector. Before the inspector’s inquiry, the second defendants adopted the UDP. Following an inquiry, the inspector dismissed the appeal after consideration of the newly adopted UDP.
The claimant applied, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision, contending, inter alia, that the inspector had erred in taking into account the adopted UDP, instead of the structure plan and the unadopted UDP as they stood at the time of the second defendants’ decision.
The application raised an issue as to whether, where a material change had occurred between the date of a decision of a local planning authority (LPA) on a planning application and a decision on appeal from the LPA, such as the adoption of a new development plan, the inspector should on appeal have taken into account the changed circumstances, or merely the circumstances as they stood when the LPA made their decision.
Held: The application was dismissed.
On an appeal from the decision of an LPA, an inspector appointed by the National Assembly for Wales (or the secretary of state in England) was bound to take into account the material considerations as they stood at the date of his decision. This would include any changes to the development plan made after the date of the LPA’s decision: Clyde & Co v Secretary of State for the Environment [1977] 2 EGLR 148 considered.
When an inspector heard an appeal from a decision of an LPA on a planning application, it was clear from the wording of section 79(1) of the 1990 Act that he was not merely reviewing the decision of the LPA, but had an original jurisdiction to hear the matter de novo and make a decision having regard to the development plan.
On the natural meaning of the words in section 38(6) of the Planning and Compulsory Purchase Act 2004, any determination had to be made in accordance with the development plan that was in force at the time of that determination. That conclusion was in line with both policy and case law, and was put beyond doubt by section 27A of the 1990 Act, under which the inspector had to have regard to the provisions of the UDP for the time being in force: Newham London Borough Council v Secretary of State for the Environment (1986) 53 P&CR 98 considered.
The claimant appeared in person; Clive Lewis QC (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and were not represented.
Eileen O’Grady, barrister
