Town and country planning: residential development

Respondents applying for planning permission to remove mobile home and certain other structures and replace them with dwelling-house - claimant local planning authority refusing permission - respondents appealing - inspector allowing appeal - claimants seeking to quash decision - whether inspector misapplying local plan policy - whether inspector making material error of fact - claim allowedFareham Borough Council v Secretary of State for the Environment, Transport and the Regions and others: Queen's Bench Division: Administrative Court: Sir Oliver Popplewell: 5 June 2001The second and third respondents (B) owned a mobile home which was situated on an area of land in the countryside along with a stable, a domestic store, a hay store, a shed and a greenhouse.

The stationing of the mobile home for residential purposes was lawful by reason of a certificate of by reason of a certificate oflawfulness.

The site also benefited from an extant permission for the replacement of the mobile home and certain outbuildings with a two-unit residential caravan.

B applied for planning permission to remove the mobile home, hay store, shed and greenhouse, and replace them with a two-storey dwelling-house and double garage.

Fareham Borough Council (the claimants) refused permission and B appealed.Policy H11 of the adopted local plan provided: 'Residential development in the countryside will not be permitted unless (a) it...

does not adversely affect the landscape and (d) it replaces an existing permanent dwelling-house with one which...

would not result in increased visual intrusion.' In his decision letter, the inspector considered the 'fall-back' position, namely the implementation of the extant planning permission.

He concluded that the proposed development was within the ambit of replacement of 'an existing permanent dwelling house' in policy H11 and that it would improve the appearance of the appeal site and the character of the countryside.

The inspector allowed the appeal and granted conditional planning permission.

The claimants sought to quash the inspector's decision pursuant to section 288 of the Town and Country Planning Act 1990.

Their principal ground of challenge was that the inspector had misinterpreted and misapplied policy H11 because it was clear from the material presented to him that an 'existing permanent dwelling-house' did not include the use of land for the purpose of stationing a mobile home.

The claimant further contended that in assessing the impact of the extant planning permission, the inspector made a material error of fact, in that his assessment was on the basis that the hay store and other structures would remain, whereas the permission required them to be removed.

The inspector therefore made a false comparison between the impact of the appeal proposal and the impact of the extant permission.

That undermined his conclusion that the appeal proposal would result in visual improvements.Held: The claim was allowed.

The inspector's interpretation of policy H11 was not unreasonable or irrational.

However, the inspector did make an error of fact.

Applying Jagendorf v Secretary of State for the Environment [1987] JPL 771, it was not possible to say that that error made no difference to his decision.

Although the central issue was one of policy interpretation and the question of 'fall-back' was of substantially less materiality, it was nevertheless significant to the inspector's decision.

It was not possible to say that, but for the error, he would have reached the same conclusion.

Therefore, the decision was to be quashed and the matter remitted to the secretary of state.Michael Bedford (instructed by the solicitor to Fareham Borough Council) for the claimants.

David Forsdick (instructed by the Treasury Solicitor) for the first respondent.

The second and third respondents did not appear and were not represented.