Knight v Secretary of State for Communities and Local Government & Anor

An application under section 288 of the Town and Country Planning Act 1990 is concerned with legality, not a rehearing of planning merits. The court must defer substantially to an Inspector’s expert planning judgment, subject to legal error, irrationality, procedural unfairness and, where Convention rights are engaged, proportionality. A policy permitting replacement dwellings in the green belt applies to existing dwellings, not merely land previously occupied by a dwelling. Previously-developed land does not create a presumption in favour of housing development and does not override green belt policy. Where new development is inappropriate, permission requires very special circumstances which clearly outweigh the harm caused by inappropriateness and any other harm. A planning decision’s balancing exercise may satisfy Convention proportionality even without using that word expressly.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of his appeal under section 78 against refusal of outline planning permission for a dwelling at Yew Tree Cottage, Tandridge. The site had formerly contained a cottage, but had later been used as a rubbish tip and showed no visible evidence of the former dwelling when inspected.

The local planning authority and Inspector treated the proposal as a new dwelling in the green belt under Policy RE2, rather than replacement of a dwelling under Policy RE9. The claimant argued that the wrong policy had been applied, that the Inspector’s assessment was unreasonable, and that insufficient regard had been given to his personal circumstances and Convention rights.

1. The application was dismissed. The challenge was not a rehearing on planning merits. The court could intervene only on conventional public-law grounds, subject to a broader proportionality principle where Convention rights were engaged.
2. The court accorded substantial deference to the Inspector’s expert planning judgment. Whether a matter was legally material was distinct from the weight to be given to it, which was for the planning decision-maker. The Inspector’s reasons were to be read realistically and flexibly, and needed to address the principal important controversial issues without addressing every consideration.
3. The Inspector was entitled to apply Policy RE2 rather than Policy RE9. Replacement of a dwelling meant replacement of an existing dwelling, consistently with Planning Policy Guidance 2: Green belts. The former cottage, demolished many years earlier, had no visible remains, and the intervening use as a tip and absence of any intention to resume residential use supported the conclusion that the proposal was a new dwelling.
4. Policies favouring previously-developed land in Planning Policy Statement 3 and the Core Strategy did not override the retained green belt policy. Previously-developed land did not carry an existing presumption in favour of housing. In any event, it was doubtful whether the site qualified because any remains might have blended into the landscape.
5. The proposed dwelling was inappropriate development. Under RE2, permission could be granted only if very special circumstances clearly outweighed the harm caused by inappropriateness and any other harm. The Inspector was entitled to conclude that the claimant’s history, age, wish for independence, ownership of the land and restoration of the site did not outweigh the substantial green belt harm and the site’s unsustainable location.
6. It was questionable whether Article 8 or Article 1 of Protocol 1 was engaged, since no established home or deprivation of possessions was shown. Even if engaged, the Inspector’s balancing exercise was proportionate. Convention rights informed planning decision-making, but did not radically change planning law, and the absence of the word proportionality did not invalidate the decision.
7. The first defendant was awarded costs, summarily assessed at £5,752.