Chelmsford Car & Commercial Ltd, R (on the application of) v Chelmsford Borough Council

Although alternative sites are generally immaterial or of negligible weight in planning decisions, that approach is fact-sensitive. Where two rival applications seek to meet the same highly localised need, both applications must be assessed comparatively if the development plan makes the alternative relevant. The authority must consider the planning factors bearing on each proposal, including compliance with cumulative policy criteria, relationship to the settlement boundary, settlement pattern and landscape impact. It cannot compare the sites on factors favouring one proposal while treating other relevant comparative factors as immaterial. A failure to conduct a properly balanced assessment may be unreasonable and unfair.

The claimant sought judicial review of planning permission granted to the interested party for 12 affordable dwellings outside the defined settlement boundary of East Hanningfield. The claimant had made a rival application for 12 affordable dwellings on the opposite side of Old Church Road. It was common ground that the village had a proven need for only 12 dwellings.

The council compared the applications on matters including need, affordability and deliverability, but declined to compare their respective locations, settlement relationships and landscape effects. The central issue was whether, in these circumstances, the council was required to undertake a comparative assessment of the rival sites.

1. Claim allowed. The planning permission was quashed. The council was ordered to pay the claimant’s costs, summarily assessed at £19,000 plus VAT where payable.
2. The general approach that alternative sites are normally immaterial had to be applied cautiously because the authorities were fact-sensitive. Different considerations could arise where there were rival planning applications, an alternative site was merely suggested, or no specific alternative site was identified.
3. Here, the two applications concerned opposite sides of the same road and the same very limited, highly localised need. Both applications were before the planning committee at the same meeting. In those circumstances, common sense indicated that the merits of the two sites were materially comparable.
4. Policy HO3 was an exception to the normal restraint applicable under Policy C5. Its criteria were cumulative. The requirement that the need could not be met in any other way did not permit the council to treat as immaterial the fact that one site satisfied the adjacency criterion while the other did not.
5. The council had already compared the proposals on affordability, deliverability and need. It was therefore inconsistent and unfair to refuse to compare their relationship with the defined settlement, their relationship with the existing settlement pattern and their landscape impact. Those matters were relevant both to Policy HO3 and to the wider requirements of Policy C5.
6. The court did not determine which site had the better planning merits. It held only that the claimant’s comparative case could not lawfully be set aside as immaterial. No stay was granted. Any reconsideration had to take account of circumstances as they then existed.