Council granting planning permission – Objector claiming council failed to take into account alternative site as material consideration – Application for judicial review – Whether council erred – Judge quashing council’s decision — Appeal allowed
A housing association applied for planning permission to develop homes for the elderly, comprising eight two-bedroom bungalows, on land described as the Green, Kinsbury, Tamworth, Staffordshire. The respondents were two children who had been in the habit of playing on the land, which consisted of an open space in the middle of a residential estate. The mother of one of the children wrote to the planning department of the appellant council making representations that were placed before the planning committee when they met to consider the application in December 1999. The letter stated that a nearby site on Coventry Road, which had originally been proposed, was more suitable, since it would not meet with so many objections from local residents and was closer to facilities such as shops and a bus stop. The committee decided that they were not entitled to consider the availability of an alternative site, and, at the end of the meeting, recommended that permission be granted. The council accordingly granted permission later that month.
The respondents applied for judicial review of the council’s decision. They contended that the availability of an alternative site was a material consideration that ought to have been taken into account in determining whether to grant planning permission, and that the council had erred in concluding that they could not consider the availability of such a site. After considering Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1987) 53 P&CR 299 and Vale of Glamorgan Borough Council v Secretary of State for Wales [1986] JPL 198, the judge found that the council had made their decision in the belief that they were bound to disregard the availability of an alternative site. He held that the council had in fact been entitled to consider this in the context of: (i) the degree of need; (ii) the availability of alternative sites; and (iii) the adverse effect upon the particular site proposed. Accordingly, he ordered that the council’s decision be quashed and reconsidered. The council appealed.
Held: The appeal was allowed.
In general, consideration of alternative sites was relevant only in exceptional circumstances. Such circumstances might arise when proposed development, however desirable, involved effects so adverse that the possibility of alternative sites became necessary to planning considerations. However, such circumstances had not arisen in the instant case, and, therefore, the council had not erred in assuming that they should not consider the availability of such a site.
Timothy Jones (instructed by the solicitor to North Warwickshire Borough Council) appeared for the appellants; Timothy Corner (instructed by Public Interest Lawyers, of Birmingham) appeared for the respondents.
Thomas Elliott, barrister
