Residential development – Semi-rural site – Planning permission for apartment blocks – Application for permission for taller blocks – Permission refused on ground of inappropriate design and prominence of buildings compared with approved scheme – Whether inspector erring in approach to surrounding tree cover – Whether erring in assessment of fall-back position – Claim dismissed
In late 2005, the claimant submitted a planning application to the second defendant council in respect of a site in Oldham, for which a 2003 planning permission already existed for the erection of 18 apartments, in two blocks, together with one house. The claimant’s application sought to increase the number of apartments to 21 and involved the creation of a new access road for the development. The second defendants refused that application on the ground that the design and scale of the proposed development would be out of keeping with the street scene and the character and appearance of the surrounding area, contrary to the relevant development plan policies.
In his decision, the inspector found that the development would be unsuitable notwithstanding the existence of the 2003 permission. He considered that although the scheme approved in 2003 would be contained by existing surrounding woodland and replacement planting, since it would not exceed the predominant height of the trees as indicated by tree survey information, the claimant’s proposed buildings would be taller and more prominent and their modern design and materials would be inappropriate in the semi-rural location.
The claimant brought proceedings to challenge that decision under section 288 of the Town and Country Planning Act 1990. It contended that the inspector had: (i) misunderstood the tree survey information, which did not mention an average tree height or support that found by the inspector; (ii) acted unfairly by basing his conclusion upon the issue of “containment”, which had not been raised by any party; and (iii) thereby erred in his assessment of the fall-back position under the 2003 permission.
Held: The claim was dismissed.
The inspector had visited the site and had been entitled to exercise his expert judgment in assessing the “predominant” height of the trees. He had been under an obligation to exercise his planning judgment in making an overall assessment of their prevailing height, and his reference to the predominant height formed part of a broader assessment of the landscape effect of the claimant’s proposals given the tree coverage. In referring to the issue of “containment”, the inspector had not raised a matter that had not been put forward by any party. “Containment” was not a term of art but was a compendious label for the relationship between the development proposals and the setting, both in general terms and with specific regard to the trees on the site. Those matters had clearly been raised at the inquiry. Nor had the inspector erred in considering the fall-back position. He had correctly determined the instant application on its merits while having regard to the fact that an alternative permission could be implemented. He had clearly compared the two schemes and found that the claimant’s proposals would breach development plan policy in ways that the approved scheme would not. His approach had not been irrational.
Paul Tucker (instructed by Clarke Willmott, of Birmingham) appeared for the claimant; David Blundell (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
