PP 2012/49

Town and country planning Alternative sites In Dudgeon Offshore Wind Ltd v Secretary of State for Communities and Local Government and others [2012] EWHC 861 (Admin) the claimant successfully applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the first and second defendants to refuse, on appeal, planning permission for an electricity substation required as part of the infrastructure relating to an offshore windfarm to be constructed by the claimant. The decision followed a hearing by an inspector, and was in accordance with the inspector’s recommendations. One of those was that the possibility of an acceptable site elsewhere told against acceptance of the environmental consequences that would be associated with constructing the electricity substation on the appeal site. The claimant’s first ground of challenge was that the hearing was procedurally unfair, because the inspector had told the parties at the outset of the hearing that the question of alternative sites was not in issue before him. He had stated that the decision would be based on the appeal site. Accordingly, the decision-makers had taken into account a matter on which the claimant was not given the opportunity to be heard. In upholding that ground of challenge, the court helpfully restated the law relating to the question when it is necessary, or at least permissible, to have regard to the possibility of meeting a recognised need elsewhere than on the application or appeal site. The basic principle is that land may be developed in any way that is acceptable for planning purposes. The fact that other land exists on which the development would be even more acceptable for planning purposes would not justify the refusal of planning permission on the application or appeal site. However, where there are clear planning objections to the development proposals in question, it may be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so (a) when the development proposals are likely to have significant adverse effects and (b) where the major argument advanced in support of the planning application is that the need for the development outweighs the planning disadvantages inherent in it. Instances of this type of case are developments of national or regional importance. The evaluation of the relevant factors, however, is a matter of planning judgment for the decision-maker, involving no issue of law. John Martin is a freelance writer