Bovale Ltd, R (on the application of) v Secretary of State for Communities and Local Government & Anor

In a plan-led planning system, conflict with development-plan policies may amount to a clear planning objection. Where an applicant relies on need to overcome that objection, the decision-maker may consider whether the need can be met on alternative sites. That question is fact-sensitive and no general rule requires alternative sites to be considered in every application. The greater the planning objections, the more material the possibility of meeting the need elsewhere may become. The decision-maker must assess the need identified, its geographical scope and whether other sites could meet it, while weighing the proposal’s advantages against development-plan objections.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its appeal against refusal of planning permission for a total care village in Hereford. The inspector found conflict with development-plan policies concerning employment land and affordable housing, although the proposal would meet an established need for care facilities in Hereford. The claimant argued that the existence of alternative sites was legally immaterial and relied on R (Jones and Another) v North Warwickshire Borough Council [2001] 2 PLR 59. The central issue was whether the inspector was entitled to consider whether the identified need could be met on other sites in Hereford.

1. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed in the agreed sum of £8,500.
2. The court rejected the submission that alternative sites were immaterial as a matter of law. A judgment concerning alternative sites must not be treated as if it enacted a general rule. The observations in R (Jones and Another) v North Warwickshire Borough Council [2001] 2 PLR 59 were made against different facts, including the absence of clear planning objections and conflict with development-plan policy.
3. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the inspector had to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. Having found conflict with policies on employment land and affordable housing, he had to dismiss the appeal unless the claimed advantages outweighed those objections.
4. The need for care facilities in Hereford was a material consideration which the inspector had to consider. It was therefore relevant to ask whether that need could be met only on the appeal site or could be met on other sites in Hereford, including sites allocated for residential development.
5. The reasoning in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 56 P & CR 293 provided the nearest analogy: where planning objections are sought to be overcome by need, the greater those objections, the more material the possibility of meeting the need elsewhere. Conflict with the development plan was capable of constituting a clear planning objection.
6. No general principle was laid down. Whether alternative sites are relevant depends on the particular facts. In this case, because the asserted need was geographically confined to Hereford and was relied on to outweigh development-plan objections, consideration of other sites was plainly relevant.