Holding, R (on the application of) v First Secretary of State

In planning law, development includes a material change of use of buildings or land. An inspector may therefore apply development-plan policies to an application seeking to change an annex into a separate dwelling.

An inspector must determine an appeal in accordance with the development plan unless material considerations indicate otherwise. A challenge to secondary reasoning cannot succeed where an unchallenged development-plan finding independently requires dismissal.

Procedural fairness requires the parties to know the case they must meet in broad terms. A finding about plot size may be based on plans and the inspector’s site observations without detailed measurements, provided the conclusion is rationally open on the evidence.

The claimants challenged a Planning Inspector’s dismissal of their appeal against refusal of planning permission for the change of use of an annex at Birchwood House into a separately occupied dwelling. They alleged that the inspector had misapplied development-plan policies, acted procedurally unfairly by relying on plot size without warning, and reached an irrational conclusion about the character and appearance of the area.

The central issues were whether a change of use constituted development for planning purposes, whether the inspector’s policy analysis was lawful, and whether his findings about the surrounding plots were procedurally fair and supported by the evidence.

1. The challenge was dismissed. The claimants’ supplementary argument that the inspector had misdirected himself by using the term “development” failed. Under section 55(1) of the Town and Country Planning Act 1990, development includes both building operations and any material change of use of buildings or land. The inspector understood that the proposal was to change the existing annex into a separate dwelling.
2. The inspector was required by section 54A of the Town and Country Planning Act 1990 to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. He had found that no material considerations outweighed the presumption against the proposal. Since that finding was not challenged, the appeal had to fail irrespective of the inspector’s conclusion on the character and appearance issue.
3. The asserted contradiction between the inspector’s findings on privacy, noise and landscaping and his conclusion that the proposal would harm the character and appearance of the area was based on a misconception. An annex ancillary to a main dwelling is conceptually distinct from a separate dwelling. Permission for the latter had to be considered by asking whether a dwelling would be acceptable in that location.
4. The procedural-fairness challenge also failed. The local planning authority’s appeal statement had identified the impact of a separate dwelling on the character of the area and had specifically raised whether the plot or building would fit the surrounding area. The claimants therefore knew the substance of the case they had to meet.
5. The inspector’s plot-size finding was fair in relation to Birchwood House and Oakwood, although inaccurate in relation to Birchwood Cottages because the plan treated the cottages as one property. That error did not undermine the conclusion. The inspector was entitled to rely on the plans and his own observations at the site visit; detailed measurements of neighbouring properties were unnecessary.
6. The defendant was awarded costs assessed at £2,800.

The judgment describes an appeal to a Planning Inspector against Horsham District Council’s refusal of planning permission. The inspector dismissed that appeal on 24 July 2003. The High Court dismissed the subsequent challenge.