Claimant council applying for planning permission for residential development at site – Site safeguarded for educational use – Inspector finding residential use acceptable but concluding possible future use of site for school and dismissing appeal – Claimants seeking to quash decision – Whether inspector applying wrong test – Whether “balance of probabilities” test applicable – Claim dismissed
Nottinghamshire County Council (the claimants) owned an area of open land (the appeal site) on the edge of a housing estate. The local plan identified the site for use as a primary school and safeguarded it for that purpose until 2006. The claimants subsequently decided that the site was surplus to requirements and applied for planning permission for residential development. The matter came before an inspector.
In his decision letter, the inspector found, inter alia, that the proposal to build houses on the site was substantially in accordance with the policies of the development plan. However, he considered one of the main issues to be whether the site was likely to be needed for educational purposes in the future. The inspector concluded that “a new primary school is likely to be needed in or close to the urban area of Newark”. He found that the appeal site was suitable for that purpose and “the possible future location of suitable sites for a new primary school was so constrained that it would be wrong not to safeguard the site for that purpose”. Consequently, the inspector dismissed the claimants’ appeal and refused planning permission for their housing proposal.
The claimants sought to quash that decision pursuant to section 288 of the Town and Country Planning Act 1990. They submitted that the inspector had found the alternative educational use was merely “possible”, and had therefore misdirected himself by using the wrong test. Applying the “balance of probabilities” test, as set out in Westminster City Council v British Waterways Board [1984] 2 EGLR 109 (the BWB test), the acceptable residential use should not have been rejected in favour of the alternative use unless, on a balance of probabilities, the refusal would have resulted in the site being put to that alternative use. The claimant contended that Bloomsbury Health Authority v Secretary of State for the Environment [1993] JPL B13 and Jackson Projects Ltd v Secretary of State for the Environment unreported 9 December 1997 supported the application of the BWB test to “future use” cases. The Secretary of State (the first defendant) submitted that the inspector had in fact applied the BWB test, but that the test should be confined to “existing use” cases.
Held: The claim was dismissed.
The inspector had not applied the BWB test. His approach was predominantly driven by his opinion, or planning judgment, that it was, in all the circumstances, desirable to preserve the option of locating a primary school on the appeal site. However, the inspector was not bound to apply the BWB test. There was no warrant in the Act, or in binding authority, for imposing a 51% probability test to the application of policies or proposals of local or other planning or public authorities that sought future uses or development, or that sought to protect or safeguard land for some particular purpose. Bloomsbury and Jackson had been wrongly decided. Different considerations arose in future use cases.
One of the problems for planners in a country where land is an increasingly scarce resource is making decisions as to the use of such land for existing and future generations. If it appeared desirable to preserve the option of using a piece of land for a purpose that was seen to be of benefit either to the country or the local community, this would constitute a material planning consideration for the purposes of sections 54A and 70(2) of the Act. The weight given to that consideration would vary hugely from case to case, but both the importance of the proposal and its desirability in terms of the public interest would undoubtedly be matters to be weighed.
In considering whether to grant permission for a proposal (use B) that would pre-empt the possibility of the desirable future use (use A), the relative desirability of the two uses has to be weighed. The likelihood of use A actually coming about would undoubtedly be a highly material consideration. However, there was no warrant to put a gloss upon the wide statutory discretion by imposing the condition that the desirability of use A could only be a material consideration if it had a 51% probability of coming about. Therefore, it was, in principle, open to the inspector to refuse the development plans, in light of his conclusion that it was desirable to preserve the option of retaining the site for educational use, even though he had made no finding that it was more likely than not that the site would be put to educational use.
Jeremy Cahill (instructed by Hammond Suddards Edge, of Birmingham) appeared for the claimants; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, Newark and Sherwood District Council, did not appear and were not represented.
Sarah Addenbrooke, barrister
