Site with extant planning consent — Area local plan — Site owner agreeing to give up consent subject to amendment to plan — Public inquiry — Inspector recommending that proposed amendment not adopted — Council accepting recommendation — Adoption of original policy — High Court quashing policy in part — Court of Appeal allowing appeal
A 25-acre plot of land owned by P was known variously as Old Cransley Ironworks and Cohens Yard, off Northampton Road, Kettering. It was skirted by a disused railway line. The site lay in open countryside close to the built-up area of Kettering. In 1960 planning permission was granted for the use of part of the site for storage, sorting and cutting up of scrap metals. The site was not in active use between 1989 and 1992. A consultation draft of the council’s local plan for the area was published in May 1990. The plan was placed on deposit in May 1991 when the site was described as derelict and designated as a site suitable for a single prestigious use.
P objected that there was extant planning permission in respect of the site. However, following discussions with the council it was agreed that he would give up that permission without compensation as a prerequisite to the issuing of planning permission for a prestige form of development as an amendment to the adopted plan (policy K17A).
After a public inquiry, the inspector recommended that the new policy K17A should not be included in the plan. Meanwhile, the site owner informed the council that as an interim measure he would let out the site for storage of scrap in accordance with the 1960 consent. The council adopted the inspector’s recommendation and adopted the plan in its original form (policy 97(v)) with minor modifications. The effect of the decision was that the land would be zoned as countryside with all the restrictions on future development that implied. P applied to quash the whole of policy 97(v). The High Court quashed the material part of policy 97(v) which referred to the Cransley Ironworks site.
Held The council’s appeal was allowed.
1. After the inspector had reported, the council had a threefold duty: first, to consider the report of the inspector: regulation 29(1) of the Town and Country Planning (Structure and Local Plans) Regulations 1982. Second, to decide whether to take any action regarding the plan in the light of the report. Third, to determine whether to adopt the proposals as originally proposed in the plan or as modified to take account of any relevant objections or other considerations which appeared to be material: section 43(2) of the Town and Country Planning Act 1990. The relevant discretion at the second and third of those stages was the unfettered discretion of the council so long as they considered the inspector’s report, they had regard to other material considerations and they were not perverse: see Tesco Stores Ltd v Secretary of State for the Environment [1995] 27 EG 154.
2. It was a material consideration whether the 1960 permission was in fact being used or whether no use was being made of it at the time the inspector reported, although how much, if any, weight the inspector should give to it was a matter for him. It was open to the inspector to conclude that if there was a demand for the suggested lawful use of the site some activity would be occurring there.
3. That apart the inspector put forward powerful planning considerations for the council to consider when deciding whether to adopt policy K17A.
4. The evidence showed clearly that the council considered the matter afresh after reviewing the inspector’s report and were entitled to accept his recommendations.
Robin Purchas QC and James Findlay (instructed by the solicitor to Kettering Borough Council) appeared for the council; Duncan Ouseley QC and Thomas Hill (instructed by Marron Dodds) appeared for P.
