Local plan policy Application for planning permission — Inspector finding development proposal not appearing to comply with local plan policy — Whether inspector erring in law by granting permission on basis no material harm would result — Claim allowed
The claimant council refused a developer’s application for planning permission to construct two three-storey dwellings on a site in Richmond. The developer appealed to the defendant Secretary of State. In deciding the appeal, the inspector took into consideration a policy in the local plan that set standards for open space provision. This stated that permission would not be given for development proposals in the Richmond area that would, to a material extent, taking account of those standards, either reduce the supply of, or fail to meet extra demand for, public open space.
The inspector stated in her decision that the development proposals did not appear to comply with the local plan policy. However, she went on to find that material harm was unlikely to result from the development, and she allowed the appeal.
The council challenged that decision under section 288 of the Town and Country Planning Act 1990. They contended that the inspector had erred by introducing a concept of material harm that could not be found in the local plan policy. The Secretary of State argued that the inspector had rightly approached the policy as raising two questions, namely whether: (i) the proposed development would reduce the supply of, or fail to meet extra demand for, open space; and (ii) if so, it would do so to a material extent.
Held: The claim was allowed.
The tenor of the inspector’s reasoning was that although the development would fail to comply with the local plan policy, it should nevertheless receive planning permission because it was unlikely to cause material harm to that policy or its objectives. That was an error of law. It had led the inspector to grant permission in circumstances where she had found that a development would be contrary to the development plan, without going through a lawful exercise of finding countervailing material considerations. In such circumstances, the decision had to be quashed.
Iain Colville (instructed by Sharpe Pritchard) appeared for the claimants; Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
