Development – Planning permission – Sustainability – Claimant making multiple unsuccessful applications for planning permission for sustainable self sufficient dwelling – Claimant seeking to quash planning inspectors’ decisions – Whether inspectors erring in law in exercise of planning judgment – Applications dismissed
The claimant made applications under section 288 of the Town and Country Planning Act 1990 for orders quashing decisions of two different inspectors dismissing his appeals against the refusal by the local authority (the interested party) of planning permission or its failure to determine the application. The first application was against the decision to dismiss three conjoined appeals in relation to the erection of a replacement dwelling at Longberry Farm, Bettersden, Ashford, Kent. The second application related to the dismissal of the claimant’s appeal against the refusal of planning permission for the erection of a new dwelling on the same site.
The buildings for which the claimant had sought permission were all designed to avoid any reliance on non-renewable energy. Accordingly, they accorded with Directive 2010/31/EU which by article 9 required member states to ensure that, by 31 December 2020, all new buildings were nearly zero-energy buildings. The Directive required all new buildings to be constructed after it came into effect, on June 2010, to comply with minimum energy requirements set with a view to achieving cost-optimal levels. The National Planning Policy Framework Strategy (NPPF) made it plain that there was a presumption in favour of sustainable development and that, while planning law required that applications had to be determined in accordance with the development plan unless material considerations indicated otherwise, the plan and any decision had to reflect that presumption.
The claimant, who described himself as an eco-technologist, challenged the manner in which the defendant secretary of state, through the NPPF, had applied the Renewed EU Sustainable Development Strategy 10917/96 and the alleged failures by the two inspectors to apply a proper approach to and understanding of sustainable development in dealing with the appeals. The claimant argued that the building he was seeking to erect conformed to the requirements of the NPPF and EU Directive so that, consistently with the obligation to achieve sustainable development, permission should have been granted.
Held: The applications were dismissed.
(1) As regards the first application, the future exhaustion of energy services was very important, there had to be consideration given to the needs of the present as well as the future. Thus, for example, a development which, however autarkic, was entirely out of place or would adversely affect in economic terms a neighbouring community could properly be refused. Furthermore, an unsightly development in the countryside could also adversely affect future generations.
As the NPPF and the statutory provisions made clear, sustainability was not limited to the five key requirements, important though they were in considering any particular application. As always in planning cases, a balance had to be drawn between what was provided in any plan and any other material considerations. A judgment had to be exercised. Energy considerations did not constitute a trump card whatever might be considered to be the harm of the proposed developments. The claimant’s applications depended on whether the inspectors had failed to exercise their judgments in accordance with the law.
Disagreement with those judgments was not a basis for setting aside a decision. While the inspector had been well aware that the proposed development would provide for renewable energy and support the transition to a low carbon future in a changing climate, he took the view that it did not recognise the intrinsic character and beauty of the countryside. The weight to be attached to contravening considerations was, unless irrationality could be established, a matter of judgment with which the court could not interfere. It was a matter of degree and the inspector had been entitled to conclude as he had.
(2) The second application had been for a new dwelling in the countryside. It was an innovative design intended to show that near zero-energy could be achieved. However the inspector had properly exercised his judgment including that the proposed development in the particular location did not meet the test in paragraph 55 of the NPPF which provided that new isolated homes in the countryside should be avoided unless there were special circumstances.
Future generations would be adversely affected by developments which damaged the countryside. Thus the energy credentials of a development would not by themselves justify the grant of planning permission. Equally sustainable development did not give a green light to greenfield developments without considering their effect on the countryside generally and nearby communities in particular. I have given, In all the circumstances, the court was not persuaded that the inspector’s decision was erroneous in law.
The claimant appeared in person; Richard Turney (instructed by the Treasury Solicitor} appeared for the defendant.
Eileen O’Grady, barrister
