Planning: Failure to identify development as inappropriate to area

In Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council [2016] a development at Teddington Weir, Teddington Lock, Teddington was in an area designated as Metropolitan Open Land (“MOL”).

The London Plan 2015 applied – in particular policy 7.17 which provided as follows:

“Policy 7.17 Metropolitan Open Land

Strategic

A. The Mayor strongly supports the current extent of Metropolitan Open Land (MOL), its extension in appropriate circumstances and its protection from development having an adverse impact on the openness of MOL.

Planning decisions

B. The strongest protection should be given to London’s Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL.”

On appeal the Court of Appeal said in granting planning permission the Council had:

“gone badly wrong in its consideration of the planning merits of the application for development in this case. It failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, “very special circumstances” exist to justify the grant of planning permission, and it is far from obvious that they do. On the materials available before the court.”

Policy 7.17 said without “very special circumstances”, planning permission should be refused:

“to safeguard important open areas from “death by a thousand cuts”, by a series of planning permissions being granted for developments each apparently reasonable in itself but having a serious cumulative detrimental effect on the important public interest in the continuing openness of MOL and the Green Belt.”

Accordingly, “the Council failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.”

Nor was it appropriate for the court to execise its discretion not to quash the decision:

“In light of the strictness of the policy in policy 7.17 and the importance of the public interest it protects, I do not think that it can be said that it is highly likely that the outcome for the Appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.