Town and country planning – Development plan – Basements planning policy – Claimants applying to quash decision of defendant local authority to adopt revision to basements plan policy – Whether defendants failing to take account of permitted development rights for basement development – Whether defendants failing to consider reasonable alternatives – Application dismissed
The first claimant was the freehold owner of a house in the Royal Borough of Kensington and Chelsea who wished to build a basement extension. The defendants were the local planning authority for the borough which adopted a revision to their development plan, the “Basements Planning Policy” (BPP), in 21 January 2015. The second claimant specialised in the design and construction of basements. It was affected by the new policy because it considered that it would restrict its ability to construct basement extensions in the future.
The claimants applied under section 113 of the Planning and Compulsory Purchase Act 2004 to quash the defendants’ decision to adopt the revision. The claimants contended, among other things, that the defendants and the inspector had: (i) failed to take account of a material consideration, namely the permitted development rights for basement development, and the risk of greater reliance on them if the BPP were adopted. In particular, by restricting the size of basements for which planning permission would be given, the policy would encourage the construction of basements under permitted development rights to which limits on depth did not apply, with no conditions to ensure that construction did not affect the amenity of neighbours; and (ii) failed to consider and/or assess the reasonable alternative of a case by case approach put forward by the claimants and so failed to carry out an adequate environmental assessment.
Held: The application was dismissed.
(1) It was common ground that the creation of a basement (whether beneath an existing building, or as part of the construction of a new building) was “development” for the purposes of sections 55 and 57 of the Town and Country Planning Act 1990. Permission for certain classes of development was granted by article 3 of the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) which granted planning permission for the development set out in Schedule 2 to that Order (permitted development rights). Class A within part 1 of Schedule 2 provided that “the enlargement, improvement or alteration of a dwellinghouse” was permitted development. Paragraph A.1 contained a number of detailed restrictions and A.2 set out additional restrictions applicable only to developments within article 2(3) land (including conservation areas). A further limitation to the use of permitted development rights, particularly relevant in a central London borough, was that they only apply to single dwellinghouses, rather than those incorporating one or more flats. Some categories of permitted development rights might be withdrawn by the local planning authority, by a direction under article 4 of the GPDO, if it was satisfied that it was expedient that the development should not be carried out unless permission was granted on an application.
Parliament had entrusted responsibility for the preparation of development plan documents to local planning authorities under the Planning and Compulsory Purchase Act 2004, which required them to exercise their judgment on the development and use of land in their area, within the statutory framework. Their proposals were subject to independent examination by the secretary of state’s inspector. The role of the court was a much more limited one of statutory review, intervening only where an error of law was established, and not conducting a review of the merits of the planning authority’s development plan documents.
(2) Extracts from a consultation paper published by the defendants made it clear that they had well in mind when considering the terms of their proposed new policy, that planning permission was not required for some limited basement development under permitted development rights so that it would fall outside the scope of the proposed BPP. That had the disadvantage that the defendants could not control construction method and traffic, and assess other aspects of the development. The defendants’ proposed solution was to remove the permitted development rights by making an article 4 direction, bringing all but the most minor basement development within planning control.
The inspector’s duty to give reasons did not mean that he had to respond, line by line, to every point made by everyone who made representations. Looking at the evidence before the experienced planning inspector and the references to permitted development rights in his report, the court was not persuaded that he had failed to take them into account when considering whether the proposed BPP met the requirements in section 20 of the 2004 Act. It was a matter for his planning judgment to decide what weight to give to the risk that permitted development rights would be over-used and the consequences of such over-use.
(3) On the evidence, the defendants had complied with their duty under section 39 of the 2004 Act to exercise their functions with the objective of contributing to the achievement of sustainable development. They had assessed the evidence fairly against the appropriate factors and reached cogent, reasonable conclusions. Following a consultation procedure, their conclusions were examined by the inspector and upheld. No error of law had been established.
The identification of reasonable alternatives was a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including Wednesbury unreasonableness. In the present case, the defendants had been well aware of their obligation to assess reasonable alternatives and had done so. In their sustainability appraisals and strategic environmental assessments, the defendants had assessed the alternative options against the sustainability objectives and compared them with the preferred option. The defendants’ decision, supported by the inspector, had been adequately explained and justified. The claimants’ criticisms of the approach and reasoning of both the inspector and the defendants did not establish any misdirection or error of law: Ashdown Forest Economic Development LLP v Wealden District Council [2015] EWCA Civ 681; [2015] PLSCS 216 applied. Chalfont St Peter Parish Church v Chiltern District Council [2014] EWCA Civ 1393; [2014] PLSCS 295 considered.
Paul Brown QC and Harriet Townsend (instructed by Richard Max & Co) appeared for the claimants; Timothy Straker QC and Dilpreet K Dhanoa (instructed by the Royal Borough of Kensington and Chelsea Legal Services Department) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Lisle-Mainwaring and another v Royal Borough of Kensington and Chelsea
