O'Donnell v Welsh Ministers & Anor

In a statutory planning appeal, the development plan must be read as a whole. A policy permitting conversions or subdivisions to be favourably considered does not override other applicable policies controlling development in the countryside. National planning policy may leave the degree of restriction in settlements to the local development plan and the planning judgment of the local authority.

A decision may be quashed for legal error or failure to take account of a material consideration only where there is a real possibility that proper consideration would have produced a different result. General evidence of allegedly inconsistent planning decisions is insufficient without adequate details establishing a consistent approach. A materially different earlier decision need not be followed.

The claimant applied for outline permission to build a dwelling within the grounds of his home at Kingcoed. Monmouthshire County Council refused permission under policies H5 and H6 of its Unitary Development Plan. On appeal under the Town and Country Planning Act 1990, an inspector accepted that the proposal was a subdivision which could fall within the exception in policy H5, but dismissed the appeal because the site was in the open countryside and the proposal conflicted with policy H6 and national planning policy.

The claimant challenged the inspector’s decision under section 228 of the 1990 Act. The grounds concerned the relationship between the UDP and Planning Policy Wales, the construction of policy H5, alleged inconsistent application of the UDP, and the inspector’s treatment of an earlier Brookside Farm decision.

1. The appeal was dismissed. The inspector had lawfully concluded that the proposal conflicted with policy H6 and was entitled to dismiss the appeal. The claimant was ordered to pay the Welsh Ministers’ costs in the agreed sum of £7,218.

2. Sections 72 and 79(4) of the Town and Country Planning Act 1990, together with section 38(6) of the Planning and Compulsory Purchase Act 2004, required the decision-maker to have regard to the development plan and other material considerations, and to determine the matter in accordance with the plan unless material considerations indicated otherwise.

3. The inspector was entitled to treat the UDP as establishing a distinction between development within defined settlement boundaries and development outside them. Planning Policy Wales required strict control of new housing in the countryside away from existing settlements, but did not itself prescribe the degree of restriction applicable to every part of a settlement. That was a matter for the local development plan and planning judgment.

4. The inspector had sufficiently considered policy H5. Its reference to conversions and subdivisions being potentially favourably considered operated subject to the related policies, including H6. The proposal remained subject to the restriction on new dwellings in the open countryside.

5. The evidence of other planning decisions did not establish a sufficiently consistent approach which required the inspector to follow it or seek further particulars. The burden lay on the claimant to present adequate evidence of the alleged consistency.

6. The Brookside Farm decision concerned conversion of an existing outbuilding in different circumstances. The inspector was entitled to distinguish it and, having reached a lawful conclusion on policy H6, was entitled to dismiss the appeal.

• High Court (Administrative Court): The claimant’s statutory appeal under section 228 of the Town and Country Planning Act 1990 was dismissed.
• Inspector: The appeal against the local planning authority’s refusal of permission was dismissed on 19 May 2011.