Town and country planning – Planning permission – Material consideration – Planning inspector allowing appeal against refusal of retrospective planning permission for building to store stream train – Local authority appealing – Whether inspector failing to appreciate protection of public footpaths as material consideration under National Planning Policy Framework (NPPF) – Whether inspector failing to consider alternative brownfield sites – Whether inspector speculating about lack of alternative storage for crane without evidence – Appeal dismissed
An inspector appointed by the first defendant secretary of state granted planning permission for the erection of a storage shed to house an ex-British Railways steam operated crane, following an appeal by the second defendant society against an enforcement notice served against it by the claimant local authority. The steam crane was of considerable heritage interest. It was kept in working order and used for demonstrations at the Welland Steam and Country Rally.
The shed had been erected without planning permission and the claimant refused permission to retain it as it was contrary to the local development plan and detrimental to the landscape character and visual amenity of the open countryside. The building had also been erected across a public footpath and the second defendant had failed to show why the crane could not be stored elsewhere and brought onto the site for the annual rally. The claimant issued the enforcement notice requiring removal of the shed.
The inspector concluded that the building was not detrimental to the landscape character and visual amenity of the open countryside. It accorded with local planning policy and the National Planning Policy Framework (NPPF). The inspector was not convinced that alternative covered storage was readily available. The public footpath was not a material factor in considering the planning merits of the building, although the grant of planning permission did not authorise the obstruction of a public right of way.
The claimant appealed pursuant to section 289 of the Town and Country Planning Act 1990 contending that the inspector had: (i) failed to appreciate that the protection of public footpaths was a material consideration pursuant to paragraph 98 of the National Planning Policy Framework (NPPF); (ii) failed to consider whether alternative brownfield sites could store the crane; and (iii) reached speculative conclusions about the lack of alternative storage, without any evidence, and failed to give the claimant an opportunity to respond.
Held: The appeal was dismissed.
(1) The inspector had not erred in law in addressing the fact that the building had been erected across a public footpath. The inspector did not say that the fact that the building was erected across the public footpath was immaterial in determining whether to grant planning permission, only (and correctly) that it was not a material factor in considering the planning merits of the building itself. On a fair reading of the decision, taking into account the inspector’s expertise, he had, in substance, applied paragraph 98 of the NPPF which stated that planning policies and decisions should protect and enhance public rights of way and access, including taking opportunities to provide better facilities for users.
There was nothing to contradict the second defendant’s evidence that users of the footpath could be provided with an equally convenient alternative route. The inspector rightly recognised that the question whether to divert the footpath would need to be determined on an application under the Highways Act 1990; the grant of planning permission did not authorise the obstruction of the footpath by the building.
The inspector had treated the need to protect public footpaths as a material consideration. If the footpath could be diverted to an equally convenient alternative route, the public right of way would be protected. If on an application to divert the footpath it was concluded that there was no equally convenient alternative and the footpath should not be diverted, then (notwithstanding the grant of planning permission) action could be taken to require removal of the obstruction: section 137 and 137ZA of the Highways Act 1980.
(2) The inspector had not failed to have regard to local plan policy which stated that, before greenfield land was developed, consideration had to be given to the availability of alternative brownfield sites. He referred to it expressly and addressed the possibility of the steam crane being stored on an alternative site. The inspector’s express reference to the policy provided a strong indication that he took the whole provision into account and there was nothing to the contrary in his decision.
The inspector was a specialist tribunal entitled to reach a decision on the evidence presented to him, applying his planning judgment and common sense. The evidence was that the steam crane had been in the open for over 60 years. It had been saved from decomposition in a scrap yard by the enthusiasm of members of the second defendant who had brought it to the site in 2004. The decision was taken to construct a shelter to protect the steam crane from further decay because they were unable to house the crane. The application of policy was a matter of planning judgment which could only be challenged on grounds of irrationality and the claimant had not come close to establishing that the inspector’s assessment was irrational: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 and Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin), [2017] PTSR 408 considered.
(3) The feasibility of storing the steam crane off site and transporting it to and from the rally, and the availability of alternative storage, was before the inspector and he reached sound conclusions on the evidence before him. The matters he considered were not immaterial.
The claimant’s submissions before the inspector anticipated that if the building had to be demolished the steam crane would remain on site in the open. The claimant lost on the question whether the need for the steam crane to be stored under cover had been demonstrated. The claimant could have presented evidence in support of its fall-back position that the steam crane could be stored elsewhere, but it did not. It was open to the inspector on the evidence to conclude that he was not satisfied covered storage for the steam crane was readily available elsewhere.
Timothy Jones (instructed by Malvern Hills District Council) appeared for the claimant; Charles Streeten (instructed by Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
