It has been some time since we were involved in the planning inquiry in November 2021 at the Beacon and although it has been largely quiet in terms of further developments, we would like to update you on what we know thus far.
Following the planning inspector’s decision on 24th January 2022 to dismiss the planning appeals for both schemes, on the 24th March the developer submitted an application to the High Court for permission to apply for a Planning Statutory Review.
A Planning Statutory Review is a process whereby a developer may seek permission for the High Court to review the lawfulness of the inspector’s decision. This may be granted if the High Court deems that there are reasonable grounds.
On 7th April, following consideration of the documents lodged by the developer, the judge refused the application for permission to apply for a Planning Statutory Review. The costs of preparing the application were to be paid by the developer.
On 12th April the developer submitted an application for the judge’s decision to allow the application for Statutory Review to be reconsidered. We await the result of this application.
The outcome of this will determine if a new judge disagrees with the previous judge’s decision to review the lawfulness of the planning inspector’s justification for dismissing both appeals. We have been advised by our barrister that if a Statutory Review is granted, the ‘best’ outcome for the developer would be a re-run of the inquiry. The outcome of the process does not result in planning permission being granted.
We will update you with information on the outcome of the judge’s decision when we receive the information from the High Court.
The following is a summary of the grounds for the application and the judge’s findings.
In the matter of an application for Planning Statutory Review
- Ground 1 asserts that the Inspector failed to properly interpret Class MA of the GPDO. C asserts that the use of upper floors of the former Police Station (within Appeal A) constitutes a use of part of a building for the purposes of offices such that the offices benefitted from permitted development rights, and that had the Planning Inspector (“PI”) interpreted this correctly, that would have impacted on her assessment of the fallback position and the harm caused to the privacy of existing residential properties.
- This is a reference to Paragraphs 121 and 122 of the PI’s decision. The PI concluded that in determining whether a permitted development right is engaged, it is necessary to establish what the “from” use is, in order to know whether the relevant permitted development right is engaged. She concluded that the appropriate way to establish that is by looking at the planning unit. She concluded that the offices were ancillary to the primary use as a police station and was a sui generis use such that no permitted development rights were engaged.
- C relies on the fact that user may relate to part only of a building. That is plainly correct but if C’s argument was pursued to its logical conclusion, each office within the three floors would amount to a part which could be treated separately. In my judgment the PI was correct to consider the previous use of the building. On appropriate facts, such as use of the offices by a wholly different party, there may well be separate parts of the building for the purposes of assessing the application of planning law. On the facts here, the offices were ancillary to the police station and it was proper for the PI to consider the planning unit as a whole for the purposes of considering what the previous lawful use was as a necessary first step in determining whether permitted development rights were engaged. As she made clear, there was no application before her for a Certificate of Lawfulness and she did not purport to determine any future application, but she had to come to a view on this issue in order to properly carry out the planning balance.
- Ground 2 asserts that the PI failed to explain why the external materials for both schemes (Appeals A and B) and the colour of those materials could not be conditioned as part of any planning permission granted. This assertion overlooks the fact that the PI’s decision was not limited to the external materials as such but extended to the external modelling including the materials palette as integral to the whole design. She states that the impact of the darker materials, especially in combination with the smaller window openings leads, in her opinion, to “…..a heavy, oppressive, almost monolithic feel…” PI’s Decision: Para 19.
- Similarly in Appeal B the PI’s concerns go beyond the issue simply of materials which could be the subject of conditioning in a planning permission. She found the design to be unsuitable and concluded that the “….architectural detailing and the proposed materials palette….” were inappropriate PI’s Decision: Para 35, with the reasons for reaching that conclusion clearly set out in the preceding paragraphs.
- In my Judgement neither Ground is arguable.
Planning Court statutory review – permission refused.