This case arose out of a landowner’s appeal against the refusal by Wiltshire Council’s planning committee to grant planning permission for the change of use of a farm outbuilding, which had previously been used for ancillary residential purposes in connection with the main dwelling on the premises, to use as a separate dwellinghouse.
The Council’s officer had recommended the grant of planning permission but that recommendation had been rejected by the planning committee. Their reason refusal relied on Policy BD6 of the Wiltshire Local Plan, which set out criteria for the re-use of farm buildings.
The landowner, who was represented by professional planning consultants, appealed and indicated to the Planning Inspectorate that he was happy to proceed by way of the written representations procedure.
In its statement of case, the Council maintained its reliance on Policy BD6 of the Local Plan. Two local residents and the Parish Council submitted, however, that the relevant development control policy was Policy H4, which was expressed to apply to “new dwellings” in the countryside and imposed stringent criteria on such development (essentially, it had to be an equivalent replacement of an existing dwelling or tied to forestry/agricultural use). The planning consultant representing the landowner responded stating that Policy H4 applied only to the construction of new dwellings as opposed to changes of use of farm buildings to residential use. He did not submit that, if H4 did apply, its criteria were met or that there were material considerations outweighing any breach of this policy.
The Inspector’s decision letter refused permission on the basis that the development was in breach of Policy H4 and also Policy C3, the Local Plan’s “Development Control Core Policy” which required new development to promote sustainable forms of travel, since it was a new dwelling in the countryside with no link to agricultural or forestry use.
The landowner challenged the Inspector’s decision under s.288 of the Town and Country Planning Act 1990, contending that the Inspector had erred in law in concluding that Policies H4 and C3 were breached and had acted in a procedurally unfair manner in relying on these policies despite them not featuring in any part of the Council’s objection and despite C3 not being mentioned by the local residents of Parish Council.
Following a two-day hearing, Charles George QC (sitting as a Deputy High Court Judge) dismissed the claim. In particular:
- He accepted the defendant’s submission that, following Tesco v. Dundee City Council  PTSR 983, the Court was entitled to interpret these policies itself and concluded that on their proper interpretation they “were relevant to the determination of the appeal and indeed, together constituted the critical parts of the development plan framework”.
- On the issue of procedural fairness, he accepted the defendant’s submission that the key question was whether the landowner and his professional consultants “could reasonably have anticipated” that the Inspector would wish to be satisfied that Policies H4 and C3 were complied with and that if not there were countervailing material considerations justifying the development. Acknowledging that the issue was “troublesome”, he held that there was no unfairness in relation to Policy H4 since the local residents and Parish Council had put it in issue and the landowner had been given an opportunity to respond to them, and that whilst no party had relied upon Policy C3 against the development, the Inspector’s reliance on it was not unfair because “Given the key role of C3 in the local plan, the possibility that the proposal might be held to be in conflict with it should have been obvious to the claimant”.
Charles Banner acted for the defendant Secretary of State for Communities and Local Government, instructed by the Treasury Solicitor.