Residential development — Claimants applying for planning permission — Local planning authority resolving to grant permission — Defendant calling in application for determination — Defendant accepting inspector’s recommendation and refusing planning permission — Whether inspector alerting parties adequately to areas of concern — Whether defendant properly refusing planning permission — Appeal dismissed
The first claimants, as trustees of a school, entered into an agreement with the second claimant developer to use school land to build new sports pitches and related buildings. The cost of that work was to be met by the erection of 77 dwellings. By PPG 3, there was a presumption that affordable housing should be provided as part of the proposed development. Failure to apply that policy could justify the refusal of planning permission. The local plan policy provided that sports and recreational facilities could best be retained and enhanced through limited development. Accordingly, the proposal provided for that residential development to use as little of the school playing field as possible. The claimants also proposed the payment of a commuted sum of £440,000 as an alternative to providing affordable housing.
Their application for the proposed development was supported by Sport England and the planning authority resolved to grant permission. The defendant called in the application for determination. He adopted the recommendation of his inspector and refused planning permission on the ground that the provision of enhanced sports facilities would be outweighed by the conflict with sustainable development objectives, shortcomings in housing design and significant harm to the local environment.
The claimants appealed against that decision under section 288 of the Town and Country Planning Act 1990. They argued, inter alia, that natural justice had been breached because the inspector had failed: (i) to give them adequate notice of her concerns in respect of the proposed development, particularly as to the proper interpretation of “limited development”; and (ii) properly to apply the guidance contained in PPG 3 and Circular 6/98 regarding affordable housing.
Held: The appeal was dismissed.
The inspector could not be criticised for having failed to raise specific concerns in respect of the interpretation of policy. This had been a matter of planning judgment. On a call-in where there were no opponents as such, the parties could be expected to know which matters would concern the inspector. It should have been clear to the parties that issues had arisen as to whether the proposed development accorded with the local plan and whether it conflicted with the policy in respect of affordable housing. The parties should have realised that it could not be assumed that the inspector would accept any agreement between the claimants and the council: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 EGLR 18; (1976) 240 EG 859 considered.
Neither the inspector nor the defendant had been entitled to rely solely upon the absence of provision for affordable housing on the site to refuse planning permission. The inspector had erred in failing correctly to apply the guidance in PPG 3, which did not require evidence that the site characteristics would preclude on-site provision of affordable housing or that alternative forms of on-site provision had been explored.
However, that did not affect the validity of the defendant’s decision on the call-in application, since there was nothing to suggest that, had the inspector not erred on that point, the defendant would have granted planning permission.
Alexander Booth (instructed by DLA Piper Rudnick Gray Cary UK LLP, of Birmingham) appeared for the claimants; Philip Coppel (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
