Antler Homes Wessex Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor

An inspector may accept development within a settlement policy boundary in principle yet refuse permission because the proposed scale, layout, density or visual impact conflicts with the character of the area. That is an exercise of planning judgment, provided the inspector has understood and applied the relevant policies. An inspector may also use a site inspection to assess matters of appearance, character and visual impact without treating those observations as additional technical evidence requiring further submissions. A possible procedural unfairness will not justify quashing a decision where the impugned matter was merely additional confirmation and could not realistically have affected the outcome.

The claimant developers challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of two conjoined appeals concerning proposed residential development in Telegraph Lane, Four Marks, Hampshire. The sites lay within the settlement policy boundary, where residential development was acceptable in principle, but the inspector considered that the proposed intensive, backland layouts conflicted with the established spacious and linear character of the area.

The claim alleged that the inspector had misunderstood the effect of the settlement boundary and had acted unfairly by relying on views from a public footpath without inviting further evidence about possible screening.

1. The claim was dismissed. The inspector had not revisited or rejected the planning principle that backland development within the settlement policy boundary was acceptable in principle. He had recognised that principle and then applied policy GS2, together with the other relevant development-plan policies, to the particular proposals.

2. Inclusion within a settlement policy boundary does not create an entitlement to planning permission. The decision-maker must still consider whether the development is sympathetic to the character and appearance of the area, including its scale, massing, design, layout, siting and density. The inspector was entitled to conclude that the proposed intensive development, with rear dwellings served by cul-de-sac access, contrasted unfavourably with the established spacious and linear pattern of Telegraph Lane.

3. The inspector’s reference to the development being visible from a public footpath did not amount to reliance on undisclosed technical evidence. Assessment of the visual effect and suitability of development was a matter which an inspector could judge personally on a site inspection. Winchester City Council v the Secretary of State for Environment [1979] P&CR 1 and R (Casey) v First Secretary of State [2006] EWHC 2918 (Admin) supported that approach.

4. Although it might have been preferable for the inspector to invite observations about additional planting or screening, the footpath view was only an additional confirmation of the conclusion already reached that the proposals were wholly out of keeping with the area. The claimant therefore failed to establish unfairness amounting to an error of law.

The claim was dismissed with costs assessed at £6,288.

Not stated in the judgment.