Local authority failing to determine claimant’s application for planning permission for replacement dwelling – Planning permission already existing for replacement dwelling on the site – Claimant appealing – Inspector comparing appeal proposal with existing dwelling and finding it contrary to development plan policy – Permission refused – Whether inspector should have tested appeal proposal against existing planning permission – Whether inspector misconstruing policy – Claim dismissed
The claimant applied to the second defendant council for outline planning permission for a replacement dwelling at “Old Tiles”, Newtown Linford (the appeal site). The claimant’s proposal was for a two-storey building of approximately 316m². There was a single-storey dwelling with a total floor space of 25m² on the appeal site. Planning permission existed for a new dwelling on the site, conditional upon it being a single-storey dwelling with a gross ground coverage not exceeding 50m². The council failed to determine the claimant’s application, and the claimant appealed.
In her decision letter, the inspector recorded that there was currently a building on the site, and that the council had granted planning permission for a replacement dwelling. The inspector stated the main issue to be whether, having regard to the council’s policies, a dwelling of the size indicated in the illustrative drawings accompanying the present application would be appropriate. She considered the emerging local plan and structure plan. The inspector found that policy 4 of the structure plan placed a general embargo on built development. She concluded that the size of the proposed appeal dwelling would not be a modest change in the size of the original property, and would, therefore, conflict with the emerging local plan policy. The appeal was dismissed and permission refused.
The claimant sought to quash the decision pursuant to section 288 of the Town and Country Planning Act 1990, on the grounds that: (i) the inspector misconstrued structure plan policy 4, in that she should have held that built development was only contrary to policy if it had a “significant adverse effect on the appearance and character of the landscape”; and (ii) the inspector erred in that she failed to test the appeal proposal by reference to the existing planning permission. It was submitted that she should have tested the acceptability of the appeal against the permitted scheme, not against the existing building.
Held: The claim was dismissed.
It was plain from her decision letter that the inspector did have regard to the permitted scheme for a replacement dwelling. However, while that permitted scheme was a material consideration, the relevant local plan policy required that the proposed building be compared with the original, existing dwelling. The weight to be given to the existing planning permission was a matter for the inspector. Reading the decision letter as a whole, the inspector took sufficient account of the existing planning permission in reaching her conclusion. The inspector’s interpretation of policy was one that reflected the general guidance in PPG 7. Her approach to the meaning of policy 4 in the structure plan was not only reasonable but also preferable to the claimant’s interpretation.
David Elvin QC (instructed by Marrons, of Leicester) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, Charnwood Borough Council, did not appear and were not represented.
Sarah Addenbrooke, barrister
