Planning permission – Objections – Alternative scheme – Permission granted for replacement of boys’ school with new buildings – Land located in metropolitan open land (MOL) – Appellant objecting to application proposals on ground that harm to MOL could be reduced by alternative positioning of new buildings on same site – Respondents granting permission on ground that educational need outweighing harm to MOL — Whether obliged to consider alternative siting point – Whether leaving a material consideration out of account – Appeal allowed
The appellant and the interested party ran, respectively, a girls’ school and a boys’ school on adjoining sites within an area of metropolitan open land (MOL). The development plan provided that MOL land was to be given the same protection as green belt and that planning permission should not be given for inappropriate development save where very special circumstances outweighed the harm to the MOL by reason of the inappropriateness of the development or otherwise, including harm to the openness and visual amenity of the MOL. The respondents were the local planning authority for the area.
In 2008, the interested party applied for planning permission to rebuild the boys’ school. A feasibility study identified three options for the design and positioning of the new buildings within the site and compared their merits, although their relative effect on the openness and visual amenity of the MOL was not dealt with. The planning application was for a variation on option 3, which involved siting the new buildings on a previously open part of the site. The appellant objected on the ground that option 3 was the most harmful and that it would be less damaging to rebuild the school in its existing location as per option 1.
The report to the respondents’ planning committee set out the objection but stated that each planning permission should be treated on its individual merits. Consequently, the respondents did not consider option 1. They granted permission for option 3 on the ground that the educational need for the new school outweighed the harm to the MOL.
The appellant sought judicial review of that decision. It contended that the respondents had left out of account a material consideration by failing to consider whether a less harmful option was available in the form of option 1. The respondents argued that they had to decide the application before them and, save in exceptional circumstances, did not have to consider an alternative site; further, option 1 was so vague and inchoate that it could be disregarded and moreover was impracticable. The claim was dismissed and the appellant appealed.
Held: The appeal was allowed.
The appellant’s objection that option 3 would severely injure the openness and visual amenity of the MOL, because of the siting of the buildings on the open part of the site, was a highly material consideration. Their argument that the injury would be greatly reduced were the layout to be revised to place the new buildings largely in the location of the existing buildings could be a material consideration. This was not an “alternative site” case; since the appellants’ contention was that a revised siting within the application site, such as option 1, would avoid or reduce the injury to the openness of the MOL in accordance with development plan policy, no exceptional circumstances were required in order to justify taking the point into consideration: R (on the application of Scott) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] 2 PLR 59 and R (on the application of Kilmartin Properties (TW) Ltd) v Tunbridge Wells Borough Council [2003] EWCA Civ 3137 (Admin); [2004] Env LR 36 distinguished.
Although the respondents had decide whether the revised siting point was to be regarded as a material consideration, and, if so, what weight to attribute to it, they had erred in law and ignored relevant matters when deciding to leave it out of account. Consideration of the extent of the injury that the application proposal, including the proposed siting of the buildings, would cause to the MOL would be an important factor when considering whether the revised siting point should be considered. Where there were no clear planning objections to a proposed development, alternative proposals, whether for an alternative site or alternative positioning within the same site, would normally be irrelevant: see R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29. Where, on the other hand, there were clear planning objections to a proposal, such as injury to the openness and visual amenity of the MOL, and a need for the development was claimed, the more it would be relevant to consider whether the objection could be overcome by an alternative proposal: Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 2 EGLR 185; (1986) 279 EG 680 applied. In the instant case, the respondents had had insufficient material before them on which to make any meaningful assessment of the injury that would be caused by the application proposal or the relevance of the appellant’s revised siting point. The fact that option 1 was not included in the interested party’s planning application was not a sound reason for not considering the revised siting point.
Further, where an alternative scheme was alleged to be vague, the question of whether it should be taken into account would likewise depend on the extent of the harm in planning terms that would be caused by the application scheme. If a local planning authority considered that a proposed development would result in serious harm, they would be entitled to refuse planning permission if they were not persuaded by the applicant that that harm could not be avoided or reduced by adopting an alternative scheme. The questions of where any particular application fell within the spectrum, whether the possibility of avoiding or reducing the planning harm of a particular proposal should be considered, and, if so, how far evidence in support of that possibility, or lack of it, should have been worked up in detail by the objectors or the applicant, were all matters of planning judgment for the local planning authority. However, in the instant case, the respondents had not made that judgment but had ignored the revised siting point from the outset simply because the planning application before them did not include the alternative siting. Accordingly, their grant of permission should be quashed. There were no grounds on which such relief should be refused, whether from arguments as to the impracticability of option 1 or on grounds of delay or prejudice.
Richard Langham (instructed by Kingsley Smith Solicitors LLP, of Chatham) appeared for the appellant; John Steel QC and Andrew Sharland (instructed by the legal department of Bromley London Borough Council) appeared for the respondents; Thomas Hill QC (instructed by Trowers & Hamlins LLP) appeared for the interested party.
Sally Dobson, barrister
