Botley Parish Action Group, R (on the application of) v Eastleigh Borough Council & Ors

Alternative sites may be relevant to a planning application, but they are not necessarily relevant in every case. A failure to consider an alternative site is unlawful only where the circumstances make consideration necessary. The issue is ordinarily one of planning judgment, assessed by reference to the nature and public importance of the project, the planning objections, the availability and reality of the alternative, and the applicable planning policy.

Where an alternative site is no more than a possibility, with no application or demonstrated prospect of development, it will not ordinarily prevent permission being granted. In an area lacking an up-to-date plan and a five-year housing supply, the presumption in favour of sustainable development may carry substantial weight.

The claimant challenged the grant of planning permission for a substantial mixed-use development at Boorley Green. The challenge concerned an officer’s report which stated that the application process was not the mechanism for considering alternative sites, particularly Allington Lane, and advised the committee to address the issue through prematurity and the emerging local plan.

The claim initially relied on prematurity and related grounds. Permission was refused by Lang J, and the Court of Appeal initially refused permission. On renewal, Patten LJ granted permission on the alternative-site issue. The central question was whether the council had unlawfully prevented its planning committee from considering Allington Lane as an alternative site in its own right.

1. Claim dismissed. The officer’s report did not disclose an error of law. The court was concerned with legality, not whether the planning merits should have been decided differently.
2. Consideration of an alternative site can be relevant, and in some circumstances necessary, but there is no general requirement for a sequential approach when determining a planning application rather than a plan allocation. The question depends on the circumstances of the individual case and is ordinarily a matter of planning judgment. The court applied the principles discussed in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19.
3. Relevant factors included the scale and public importance of the proposal, the degree of planning objection, whether a genuine alternative site was available, whether an application or realistic development prospect existed, and whether the proposal conflicted with planning policy. Allington Lane was only a possible alternative. No application had been made or intimated, and the available material indicated that it was unsuitable.
4. The development was contrary to the out-of-date development plan, but the approach in the National Planning Policy Framework applied. The absence of a five-year housing land supply, the need for housing, and the sustainable-development assessment were material considerations. Once the committee rejected prematurity as a reason to refuse permission, the mere possibility of Allington Lane was not a rational basis for refusing permission.
5. Even if the officer’s report should have left the alternative-site issue more expressly to the committee, that omission could not conceivably have produced a different lawful decision on the facts. The report, read as a whole, directed the committee to balance the relevant considerations.
6. On costs, the caps in CPR Part 45 and Practice Direction 45 were applied separately to the two claimants. The original unincorporated group remained subject to the £5,000 cap previously fixed, while the joined parish council, as a legal person, attracted a £10,000 cap. The defendant could therefore recover up to £15,000 in total.

The claim was initially refused permission by Lang J. The Court of Appeal refused permission on an initial application, but Patten LJ granted permission on renewal in September 2014. The substantive claim was then dismissed by the Administrative Court. Permission to appeal was refused by Collins J, leaving any further application to the Court of Appeal.