Property law reports

Town and country planning: Assessment of risk

Adverse effect of supermarket on rural economy - local plan prohibiting development in flood-risk area - whether inspector misapplied national policies - inspector under no obligation to explain decision in detail - claim dismissed

Fagg and another v Secretary of State for Transport, Local Government and the Regions and another: QBD (Mr Justice Lawrence Collins): 5 July 2002

An application was made for planning permission to erect a supermarket in the centre of a small market town on a site within a local flood plain that was at risk of flooding.

Following an appeal and a public inquiry, the first defendant's inspector granted planning permission.

He found that the scheme offered potential benefits, and that its harmful effect upon the local food industry and the economy of the rural hinterland would be limited.

Although the local plan prohibited development in flood-risk areas, the inspector followed planning practice guidance 25 (PPG 25), which advised following a sequential test to identify alternative, lower-risk options.

The claimants challenged the inspector's decision under section 288 of the Town and Country Planning Act 1990.

They claimed that the inspector had failed to give his finding of harm adequate or any weight when balancing it against the potential for benefit, or, alternatively, that he had failed adequately to explain his reasoning.

They also claimed that the inspector had misapplied the sequential test as detailed in PPG 25, by failing to apply a risk-based approach to his decision on development control, and had not considered whether alternative reasonable options were available in a lower-risk category.

Michael Bedford (instructed by Rodwell & Co, Halesworth) for the claimants; James Maurici (instructed by the Treasury Solicitor) for the first defendant; Richard Ground (instructed by Sharpe Pritchard) for the interested party, Wyncote Developments Ltd.

Held: The claim was dismissed.

Although the inspector was under an obligation to give reasons for his decision, he was not required to rehearse every argument in detail because his reasoning was addressed to parties who were already familiar with the arguments advanced at the inquiry.

The decision letter was to be read as a whole, and the inspector had stated his reasoning so as to enable the informed reader to understand how he had arrived at his conclusion on the principal controversial issues.

Although the issue of potential harm was not listed as a separate material consideration in the inspector's report, it was considered under the claimants' argument on the local rural economy.

The inspector had paid sufficient detailed consideration to the matter, and was under no duty to articulate the reason why it did not outweigh the other considerations, since the weight to be given to any material consideration was a matter of planning judgment and was therefore always a matter for the decision maker.

Since it was common ground at the inquiry that the land was at risk of flooding, it must have been the case that if an alternative site had been available it would have been considered for development.

The fact that this had not been done supported the conclusion that the proposal satisfied the provisions in PPG 25 with regard to flood-risk management.

Following Boulevard Land Ltd v Secretary of State for the Environment, Transport and the Regions [1998] JPL 983, the absence of a reference to a particular policy was not of itself sufficient to demonstrate that the policy had been left out of account.

As national planning policies (and their advice regarding flood-risk management) formed part of the background to every planning appeal, it was to be assumed that the inspector had taken them into account even if he had not mentioned them in detail.

Neither the issue of flooding nor the provisions with regard to flooding contained in government guidance papers were addressed by the claimants at the public inquiry.

Flooding risks were not a principal issue of dispute among the parties, and, therefore, the inspector did not have to make specific reference to them in his report.

Town and country planning: Change of use

Change of use - application to claimant council for retrospective planning permission - inspector granting permission on appeal in order to attach regulating conditions - conditions for purpose of regulating use rather than preventing use - whether decision irrational - claim dismissed

Sefton Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions and another: QBD (Mr Justice Sullivan): 25 June 2002

The second defendant, C, owned land that had historically been used for B2 (general industrial) purposes, including the repair of articulated vehicles.

For a period of four years, C had used the site, without planning consent, to dismantle vehicles.

The claimant council refused his application for retrospective planning permission, and he appealed to the first defendant secretary of state.

The inspector allowed the appeal and granted planning permission, subject to conditions.

In doing so, he concluded that if conditional planning permission were not granted, it was possible that the site would revert to the original B2 use.

Overall, he considered that it would be less harmful to neighbouring occupiers to grant planning permission, and thus control the use of the site, than to allow it to revert to the previous unregulated B2 use, with the attendant harmful levels of noise and pollution.

The Environment Agency had earlier advised the inspector that, prior to the grant of planning permission, a preliminary desk study should be conducted of the contamination potential, together with a site assessment of the pollution hazard.

The inspector ruled that these conditions should take effect after the grant of planning permission.

The claimants sought to have that decision quashed, under section 288 of the Town and Country Planning Act 1990, on the grounds that the inspector had been wrong to conclude that he had no method of regulating the use of the site other than to grant the planning permission in respect of the new use, since reversion to B2 use was a change of use that would need planning permission, which could include regulating conditions; and if the conditions suggested by the Environment Agency had been complied with, their effect would have precluded the new use of the site, and it was irrational for the inspector to hold that conditions that would in effect preclude use could be complied with once permission for that use had been granted.

John Barratt (instructed by the solicitor to Sefton Borough Council) for the claimants; Robert Palmer (instructed by the Treasury Solicitor) for the defendant.

Held: The claim was dismissed.

Section 57(4) of the 1990 Act made it clear that planning permission was not required where land that was the subject of an enforcement notice was returned to its original use.

Although the notice had not been served, the inspector had been correct to surmise that it would be served if planning permission were not granted.

Therefore, he was correct in concluding that the only way to enforce conditions on the use of the site was to grant the new planning permission in respect of the change of use.

The claimants had misunderstood the nature of the conditions suggested by the Environment Agency.

These were not intended to prevent the use of the site as contemplated.

Therefore, implementation of the conditions following the grant of planning permission, rather than prior to it, was not irrational.

The inspector had been justified in adjusting the terms of the draft conditions to reflect the fact that the use had already commenced.