High Court Refuses Permission for Planning Decision Review

The High Court has rejected an application by a local planning authority (LPA) for permission for statutory review of a planning decision under Section 288 of the Town and Country Planning Act 1990.

A developer applied for permission in principle (PiP) for a residential development of up to nine dwellings with associated open space and landscaping. After the LPA did not deal with the application in time, the developer appealed to the Secretary of State under Section 78 of the Act.

The LPA argued that PiP should be refused on the grounds that the development would result in a net loss of open space and the significant loss of a local wildlife site, contrary to local planning policies. The LPA also stated that its growth strategy identified other sites sufficient to accommodate anticipated growth levels.

The planning inspector accepted that the development would result in the loss of an area of designated open space and diminish the nature conservation value of the site. However, she noted that the proposal included areas of open space that would, unlike the current open space, be accessible to the public. It would also result in the provision of up to nine dwellings in an area where there was identified need. Allowing the developer's appeal and granting PiP, she concluded that the public benefits of the proposal were a clear and convincing justification for the harm to the setting of listed buildings.

Addressing the LPA's application for permission for statutory review, the Court rejected its argument that the proposed development was outside the scope of PiP. The Court noted that PiP could be granted for residential development of land, meaning development 'the main purpose of which is housing development'. Open space and landscaping were not non-housing development, triggering a duty to specify what was being permitted, but were not development at all.

The Court also rejected the LPA's contentions that the inspector had unlawfully taken into account matters that could only be decided at the second, 'technical details consent' stage, and had failed to explain the basis on which the proposal would have the benefits she had identified. The Court could see no reason why an assessment of suitability for PiP could not involve matters that would need to be considered at the second stage.

Dismissing the LPA's application, the Court noted that the benefits identified by the inspector would properly inform the LPA's decision making at the second stage, and a failure by the developer to deliver on these would justify a refusal of second-stage permission.