Nuttall, R (on the application of) v Chorley Borough Council

In Green Belt planning cases, a policy requiring evidence that a suitable business re-use cannot reasonably be secured must be applied according to its terms. Where supplementary guidance treats sale as the paradigm form of marketing, marketing solely for letting requires a clear explanation and proper consideration by the planning authority. An assurance previously given by a planning officer cannot itself establish compliance with the policy or operate as a material countervailing consideration. A policy requiring consideration of whether further agricultural buildings are likely requires an assessment of likelihood, not certainty, at the time of the application.

The claimants sought judicial review of Chorley Borough Council’s grant of planning permission for the conversion of a redundant agricultural building to residential use in the Green Belt. The challenge concerned alleged failure to comply with local-plan policies DC-1 and DC7A and related supplementary planning guidance.

The principal issue was whether the council had lawfully concluded that a suitable business re-use could not reasonably be secured when the building had been marketed only for letting. A further issue concerned whether conversion was likely to result in additional agricultural buildings affecting the openness of the Green Belt.

1. Judicial review approach. The court was not conducting a merits review or second-guessing matters of planning judgment. It was, however, required to determine whether the council had applied its own planning policies lawfully.
2. Development plan framework. The council had to have regard to the development plan and determine the application in accordance with it unless material considerations indicated otherwise, under the 1990 Act and the 2004 Act. The Green Belt policies permitted residential re-use only where the specified exceptional criteria were met.
3. Marketing requirement. The supplementary guidance made clear that the paradigm marketing exercise involved sale of the property. Letting might be appropriate in a particular case, but departing from the sale-based assumption required a clear explanation from the sales agent and clear consideration of that explanation by the planning committee. The council’s prior acceptance of a letting-only marketing scheme did not amount to compliance with DC7A. Nor could the council’s previous assurance, and the applicant’s reliance on it, constitute a material consideration outweighing the policy requirement.
4. The officer’s conclusion that the policy was satisfied was materially misleading. The absence of sale marketing meant that the council had not lawfully established that a suitable business re-use could not reasonably be secured. The permission was therefore quashed. The council might reach a different conclusion after proper sale marketing, or after giving clear reasons why sale was inappropriate.
5. Additional agricultural buildings. The test under DC7A(b) was whether further agricultural buildings were likely, not whether such a need was certain or guaranteed. The assessment had to be made at the time of the application. Although parts of the addendum misstated that test, the original report had accurately addressed likelihood and the error would not have affected the outcome. If that had been the only ground, the claim would not have succeeded.