Athlone House Ltd v Secretary of State for Communities and Local Government

For the Green Belt and Metropolitan Open Land exceptions in paragraph 89 of the National Planning Policy Framework, “the one it replaces” and “the existing development” ordinarily refer to the physical development existing on the site when the proposal is considered. They do not include an unbuilt permission, an historic configuration, or an undefined future scheme. The comparison is factual; planning judgment is exercised when the proposal is compared with that baseline. An unbuilt material fallback may be relevant to very special circumstances, but not to the paragraph 89 baseline. Planning inspectors may depart from agreed evidence, provided procedural fairness is maintained and the decision is rational, adequately reasoned and addresses the principal controversial issues.

The claimant challenged an Inspector’s dismissal of its appeal against the non-determination of an application to demolish Athlone House and replace it with a large single dwelling. The site was Metropolitan Open Land and within a conservation area. The claimant argued that the Inspector had misinterpreted paragraph 89 of the Framework by using the building as it physically stood as the baseline, had misunderstood the significance of an earlier permission and section 106 obligations, and had reached procedurally unfair and inadequately reasoned conclusions about repair and refurbishment costs.

The central issues were the proper construction of the replacement-building and previously developed land exceptions, the relevance of an unimplemented permission and future refurbishment, and whether the Inspector’s treatment of the evidence and reasons was legally flawed.

1. The claim was dismissed. Neither ground of challenge established an error of law, procedural unfairness or inadequate reasoning.
2. Paragraph 89 of the Framework is a policy document whose meaning is a question of law. It must be interpreted objectively, in context, with clarity and predictability in mind. The phrases “the one it replaces” and “the existing development” refer to the extent of physical built development on the site at the time of the proposal. They do not refer to the pre-2003 position, an unbuilt and unrealistic 2005 permission, or an undefined future scheme. The baseline is essentially a question of fact; planning judgment arises when the proposal is compared with it. (paras [30]-[41])
3. An unbuilt material fallback cannot alter the paragraph 89 baseline. It may nevertheless be relevant when considering very special circumstances, with weight depending on the likelihood of implementation and its likely effect on openness. That observation was hypothetical and did not affect the result. (para [42])
4. The Inspector was entitled to conclude that the 2005 scheme would not be implemented, that the removal of extensions had already been accounted for in the earlier planning balance, and that the continuing section 106 obligation supported the significance of retaining and refurbishing the house. The Inspector’s evaluation of conservative repair and reuse was within the legitimate scope of planning judgment. (paras [44]-[50])
5. Procedural fairness did not require the Inspector to accept agreed cost evidence or to give the claimant a further opportunity to answer conclusions which arose from evidence it had already rebutted. An Inspector is an expert tribunal, informed by but not bound by the inquiry evidence, subject to fairness, rationality and adequate reasons. The reasons sufficiently addressed the principal controversial issues. (paras [33]-[36], [47]-[50])

The judgment was a first-instance judicial review in the Administrative Court. It dismissed the claim challenging the Inspector’s decision to dismiss the planning appeal.