Mansell v Tonbridge & Malling Borough Council

A planning authority may treat a permitted-development alternative as a material fall back consideration where there is a lawful ability to undertake it, a real prospect of implementation, and a proper comparison with the proposed development. Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015 permits part conversion of a larger agricultural building, provided the part changing use does not exceed 450 square metres. Planning officers’ reports must be read fairly as a whole and against the knowledgeable readership of a planning committee. The presumption in favour of sustainable development in the NPPF may remain a material consideration even where the development plan is up to date. The weight given to competing planning considerations is for the planning authority, subject to legal and irrationality review.

The claimant, who lived next to a listed property and a conservation area, challenged the Council’s grant of planning permission for four dwellings on agricultural land at East Malling. He argued that the officer’s report unlawfully treated conversion of the existing agricultural building and replacement of a bungalow as a realistic fall back position, misapplied the NPPF, inadequately addressed the setting of listed buildings and the conservation area, and failed to recognise that the Area 3 Planning Committee lacked jurisdiction.

The court considered the construction of Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015, the prospect of implementing the fall back, the adequacy of the report, the statutory heritage duties, and the Council’s constitutional allocation of planning functions.

1. Fall back position. The three-part test is: whether there is a lawful ability to undertake the alternative use; whether there is a likelihood or real prospect of it occurring; and, if so, how it compares with the proposed development. The Council was entitled to treat the alternative development as a realistic fall back. A formal application or fully formulated proposal was unnecessary where the planning history and the owner’s intentions demonstrated a real prospect of development.
2. Class Q. Paragraph Q.1(b) of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 limits the cumulative floor space of the building or part of the building changing use. It does not require the whole existing agricultural building to be below 450 square metres. The officer was therefore entitled to conclude that part of the barn could be converted. Additional works or uses requiring separate planning permission did not prevent the permitted-development fall back from being a material consideration.
3. Planning report and NPPF. The report fairly identified the conflict with the development plan, the relevant NPPF policies and the competing considerations. The NPPF’s presumption in favour of sustainable development was not irrelevant merely because the development plan was up to date. The weight given to sustainability, policy conflict and other material considerations was a matter of planning judgment.
4. Heritage and jurisdiction. The report adequately addressed the setting of listed buildings and the conservation area. The committee was entitled to conclude that the development would alter but not harm that setting. Whether the proposal was in fundamental conflict with the development plan, for the purposes of the Council’s constitution, was a planning judgment reviewable only on Wednesbury grounds. The decision fell within the committee’s margin of appreciation.
5. All four grounds were rejected and the claim was dismissed.

First-instance judicial review proceedings. No prior or appellate decision is stated in the judgment.