Inspector allowing second respondent’s appeal against refusal of planning permission – Applicant planning authority seeking to quash decision – Whether inspector erred in approach to fall-back position – Application refused
The second respondent (S) owned a large house situated in extensive grounds. He also owned fields adjoining the house, which he used as stables under a 1994 planning permission. This contained the condition that “the land shall not be used for the purposes of landing and taking off of helicopters . . . except in accordance with any planning permission granted by the local planning authority”. For the past 10 years, S had been landing a helicopter in a number of locations adjacent to the house, in reliance upon the 28-day permitted development rights granted by the Town and Country Planning (General Permitted Development Order) 1995. He applied to use the land covered by the 1994 permission for the landing and taking off of helicopters. South Oxfordshire District Council (the applicants) refused permission. S appealed.
In her decision letter of 4 March 1999, the inspector outlined the main issues, notably: “the third issue is the extent to which the appellant would be able to use his land, and that of his neighbours . . . even if this appeal were to fail, and the effects of the level of use which would then ensue”. The inspector concluded that “the appellant would be able to use his land and that of neighbours, for more than 84 days a year without control on the timing and number of flights”. She said that there was every prospect of the fall-back position being adopted if the appeal failed. She then continued: “the effects of that level of use would . . . be at least as harmful as the proposal before me”, and she allowed the appeal. The applicants sought to quash that decision, pursuant to section 288 of the Town and Country Planning Act 1990, principally on the ground that the inspector had erred in her conclusion concerning the fall-back position. The first element in the fall-back position was the use S could make of the curtilage of the dwellinghouse, in reliance upon section 55(2)(d) of the 1990 Act. The applicants submitted that it was for the appellant to show, at the inquiry, that the use upon which he relied was “incidental to the enjoyment of the dwellinghouse”, and that the inspector’s conclusion was flawed in that she had failed to apply the test of Wallington v Secretary of State for Wales [1991] 1 PLR 87. The second and third elements in the fall-back position were areas of land outside the curtilage of the dwellinghouse and land in two neighbouring ownerships. The applicants submitted that, in view of the evidence before her, the inspector’s conclusions as to the potential use of each area of land were flawed. Finally, the applicants sought to amend their notice of motion. The respondents opposed the amendments as they raised matters that had not formed part of the applicants’ case at the inquiry.
Held: The application was refused.
1. The inspector’s reasons did not disclose any error on her part as to the proper approach under section 55(2)(d). She had correctly asked herself whether the helicopter use would be incidental to the enjoyment of the dwellinghouse, and answered that question, taking into account the nature of the house and the purposes of the helicopter use. It could not be said that her conclusions were ones at which, on the evidence before her, she could not have arrived.
2. Although there could not be a general rule that a party to a planning appeal decision is to be prevented from raising, in a challenge to that decision, an argument that was not advanced in representations made on the appeal, the interests of justice in the present case did not warrant introduction, at a very late stage, of arguments that the applicants had not raised at the inquiry.
Joseph Harper QC (instructed by the solicitor to South Oxfordshire District Council) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; David Holgate QC (instructed by Nicholson Graham & Jones) appeared for the second respondent.
Sarah Addenbrooke, barrister
