Development policy — Local plan — Reconstruction of buildings — Application to restore disused dwellinghouse — Planning permission granted — Subsequent damage to building requiring further work — New planning consent sought — Local planning authority refusing permission on basis that further work amounting to construction of new building contrary to development policy — Planning inspector refusing appeal — Whether inspector erring in failing to take account of local plan policies — Section 288 of Town and Country Planning Act 1990 — Claim allowed
The claimant’s managing director purchased a partially derelict, disused property in Northumberland. The property lay near other cottages in an area of outstanding natural beauty. Full planning permission had been granted to “restore the disused dwelling house”. When it became clear that the original walls would be unable to support the weight of the stone roofing slates, work was halted while consent for the use of lighter slate tiles was sought. During that time, the northern gable end of the property was blown down. The council indicated that any further demolition or building work would require a new planning permission. A new planning application by the claimant was refused on the basis that the application was for construction of a new building in the open countryside, which was contrary to planning policy H17. The claimant’s appeal was refused by the inspector and the property remained derelict.
The claimant brought proceedings under Part 8 of CPR 1998, pursuant to section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision. It argued, inter alia, that the inspector had failed to take into account: (i) the fact that planning permission already existed for the development in question; and (ii) the policies that were directly relevant to the up-to-date development plan adopted by the council. Policy BE 15 provided that the reconstruction of buildings within the open countryside would be permitted provided that certain conditions were met, including a condition that the lawful use of the building immediately prior to its destruction had been residential.
The Secretary of State contended that, as the claimant had not made any reference to planning policy BE 15 before the inspector, he had not been required to deal with it directly, and there was no reason to believe that he had not taken it into account.
Held: The application was allowed.
1. The inspector had erred in failing to refer to, or consider, policy BE 15 and whether the conditions therein had been complied with, and his decision would, accordingly, be quashed. Section 70(2) of the 1990 Act imposed a clear duty upon the Secretary of State to have regard to the relevant plan and to any other material considerations. The process was inquisitorial, and the inspector had to decide for himself whether planning permission should be granted. While the inspector would be influenced by the primary material and arguments put before him by the parties, if there was anything else that might be determinative or important that had not been drawn to his attention, he should have regard to it and deal with it.
2. The matters to be taken into account would depend upon the circumstances of each individual case, but in this case it was clear from the documents before the inspector that the council had rejected policy BE 15 because they took the view that the use of the building as a dwelling had been abandoned. On the evidence, that conclusion was wrong, and policy BE 15 therefore applied. A grant of planning permission would be in accordance with that policy provided that the other criteria specified therein had been met.
3. Moreover, the inspector had failed to take account of the consequences if planning permission were refused. If permission were not granted, the existing semi-derelict, unsightly and dangerous building would be left on site. That would not have a positive impact on the surrounding area, and that could justify a departure from the local plan.
Robert Fookes (instructed by Ward Hadaway, of Newcastle-upon-Tyne) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State.
Eileen O’Grady, barrister
