Factual and Procedural Background
This opinion concerns an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the first defendant regarding an appeal by the claimant against the refusal of planning permission by the second defendant. The application related to the development of a "total care village" for the elderly on a site off Faraday Road, Hereford ("the site"). The inspector's decision, dated 17th May 2007, followed an inquiry held from 24th to 26th April 2007 and a site visit on 26th April 2007.
The inspector identified three main issues: whether the site should be retained for employment uses; whether the proposal would provide satisfactory living conditions for future residents considering odour risks and potential prejudice to a nearby chicken processing plant; and whether the proposal should make provision for affordable housing.
The inspector resolved the second issue in favour of the claimant but concluded that the site should be retained for employment development, conflicting with relevant development plan policies. Regarding affordable housing, the inspector agreed with the second defendant that the proposal should include affordable housing provision, finding conflict with policy H9 and national policy PPS 3.
The inspector acknowledged the need for the facility but concluded that this need, along with job creation and visual improvements, did not outweigh the objections based on employment land retention and affordable housing requirements. The claimant challenged the inspector’s decision on multiple grounds, leading to this judicial review application.
Legal Issues Presented
- Whether the inspector erred in considering the existence or non-existence of alternative sites as a relevant planning consideration.
- Whether the inspector properly balanced the need for residential and nursing care home facilities against the policy to retain the site for employment uses.
- Whether the inspector correctly assessed the financial viability of employment-type development on the site.
- Whether the inspector erred in concluding that affordable housing provision was required for the assisted living units.
- Whether the inspector provided adequate reasons for the decision.
Arguments of the Parties
Appellant's Arguments
- Challenged the relevance of alternative sites, arguing that the existence or non-existence of alternative sites was immaterial as a matter of law, relying on the Court of Appeal decision in R (Jones and Another) v North Warwickshire Borough Council.
- Contended that the inspector failed to properly balance the need for the proposed care facilities against the policy objections concerning employment land retention.
- Asserted that the inspector did not adequately address evidence concerning the financial viability of employment development on the site, particularly the comparability of rental levels at alternative sites.
- Argued that the second defendant's change of position regarding the classification of the assisted living units was unfair and that the inspector should have rejected the affordable housing requirement on that basis.
- Claimed the inspector’s reasons were inadequate, though this ground was later abandoned as adding no substantive point.
Respondent's Arguments
- Maintained that the inspector was entitled to consider the existence of alternative sites as a relevant factor, especially given the conflict with the development plan.
- Submitted that the inspector had properly balanced competing policy considerations and found that the need for the facility did not outweigh the harm identified.
- Argued that the inspector’s assessment of financial viability was a matter of planning judgment and that the evidence relied upon by the appellant was considered and rejected.
- Contended there was no unfairness in the second defendant’s position on the use class of the assisted living units, as the initial classification was administrative and the second defendant had communicated its revised stance well before the inquiry.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Jones and Another) v North Warwickshire Borough Council [2001] 2 PLR 59 |
Consideration of alternative sites is generally only relevant in exceptional circumstances, particularly where there are conspicuous adverse effects at the proposed site. |
The court emphasized that this ruling was not a fixed rule and must be understood in context; alternative sites may be relevant when there is a clear planning objection, as in the present case. |
| Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 56 P & CR 293 |
When planning objections are overcome by reference to need, the greater the objections, the more material the possibility of meeting that need elsewhere. |
The court applied this principle analogously, finding that the inspector was entitled to consider alternative sites given the clear conflict with development plan policies. |
Court's Reasoning and Analysis
The court began by examining the relevance of alternative sites to the planning decision. It rejected the claimant’s submission that the existence or non-existence of alternative sites was immaterial as a matter of law, clarifying that the cited authority did not establish a fixed rule and must be applied in context. The court noted that under the plan-led system established by section 38(6) of the Planning and Compulsory Purchase Act 2004, a development plan conflict constitutes a clear planning objection, making the consideration of alternative sites relevant.
The court accepted that the inspector properly weighed the need for the proposed care facility against the harm identified from conflicts with employment land retention and affordable housing policies. The inspector’s conclusion that the need did not outweigh these objections was upheld.
Regarding viability, the court found that the inspector’s assessment, including the rejection of the claimant’s expert evidence on rental comparability, was a matter of planning judgment and was adequately reasoned.
The court also dismissed the claim of unfairness related to the classification of the assisted living units, noting that the second defendant’s revised position was communicated early and the inspector was entitled to rely on it.
Overall, the court found no error in the inspector’s reasoning or conclusions and dismissed the application.
Holding and Implications
The court dismissed the claimant’s application to quash the inspector’s decision.
The direct effect of this decision is that the inspector’s refusal of planning permission for the proposed "total care village" on the site stands. The claimant was ordered to pay the first defendant’s costs in a summarily assessed amount of £8,500. The court did not establish any new general legal principles but reaffirmed the applicability of the plan-led system and the relevance of alternative sites when there is a clear conflict with development plan policies.