Town and country planning: unitary development plan

Respondent council adopting unitary development plan allocating sites for employment and residential uses - applicant seeking to quash relevant parts of unitary development plan - whether council failing to take material considerations into account - whether council erring in failing to hold further inquiry - application allowedSt Pauls Development Ltd v Gateshead Metropolitan Borough Council and another Queen's Bench Division: Crown Office List: Mr Nigel Macleod QC: 22 May 2000

St Pauls (the applicant) was the successor of land (site S) for which it sought outline planning consent for residential development.

That application was refused by the first respondent council, which instead allocated the site for employment uses by policy R12.3 of the deposit draft Gateshead unitary development plan (UDP).

The draft UDP identified a second site (site K), which was within the green belt, as being suitable for residential development and allocated it for such use by policy H13.63.Following objections to the proposed allocations of both sites, including objections by the applicant, a UDP inquiry was held.

The UDP inspector raised some reservations about designating site S for employment use but nevertheless recommended that there be no change to the allocation of that site.

He also recommended that site K be retained in the green belt and that the housing allocation for that site be deleted.The applicant appealed, under section 78 of the Town and Country Planning Act 1990, against the refusal of planning consent for site S.

A further inquiry was held.

In his report, the section 78 inspector recommended that the appeal be dismissed but made a number of findings of fact regarding the feasibility of developing site S for employment use and its allocation in the UDP.After considering the UDP inspector's report, the council rejected his recommendation regarding Site K.

A statement of proposed modifications was published confirming site K as a housing site, although on a smaller scale.

The council rejected the applicant's objections to those proposed modifications and adopted the Gateshead UDP in November 1998.The applicant sought, pursuant to section 287 of the Town and Country Planning Act 1990, to quash policies R12.3 and H13.63 of the UDP on the grounds that the council had: (i) wrongly ignored material considerations, namely, evidence that emerged in the section 78 appeal and the section 78 inspector's report regarding site S; (ii) failed properly to deal with the UDP inspector's recommendation to retain site K in the green belt; and (iii) erred in failing to hold, or to consider whether to hold, a further inquiry to reconsider the merits of allocating the two sites for development in the light of the section 78 appeal.Held: Application was allowed.1.

Although there was no statutory obligation upon the council to take account of the section 78 appeal decision, the inspector's conclusions on the feasibility of employment use on site S were highly relevant to the issue of whether it should have been so allocated in the UDP, and they should, therefore, have been taken into account.2.

The council failed properly to deal with the principal issues raised by the UDP inspector in respect of the allocation of site K, including whether 'exceptional circumstances' existed that would justify the revision to the green belt boundary.

The inspector provided detailed reasoning for his recommendations, and a greater degree of particularity was, accordingly, required by the council in rejecting them.

Applying Stirk v Bridgnorth District Council (1996) 73 P&CR 439, the council was under a duty to give reasons, particularly as they disagreed with the inspector's principal conclusions.

However, they failed to do so and restated their argument advanced at the earlier UDP inquiry.3.

Following the section 78 appeal, there was new material that cast doubt on whether site S was suitable; this could have justified a further inquiry.

The applicant's objections to the proposed modifications had expressly invited fresh consideration of the relationship between the two sites in the light of the section 78 evidence.

It was incumbent upon the council to consider whether or not to hold a further inquiry, but there was nothing to suggest that they had done so.Richard Phillips QC (instructed by Walker Morris, of Leeds) for the applicant; Tobias Davey (instructed by the solicitor for Gateshead Metropolitan Borough Council) for the first respondents; the second respondent did not appear and was not represented.