Developer fails in High Court challenge to refusal of permission for 33-home scheme

The inspector rejected an appeal by developer John Lund against Kirklees Metropolitan Borough Council, which had turned down his application, and he took the council and the Secretary of State for Housing, Communities and Local Government to the High Court.

But Karen Ridge, sitting as a deputy High Court judge, said all four grounds advanced by Mr Lund were unarguable and an attempt was being made to re-argue planning merits.

The claimant wished to build 33 homes at Oddfellows Street, in Cleckheaton, but the inspector's conclusion had been that there was no prospect within a reasonable period of ensuring that an access road would be acceptable in highway terms, and so the development would result in an unacceptable impact on highway safety.

The court heard the site is grassland, part of which is unadopted and lacks street lighting.  

All parties agreed that the poor condition of Oddfellows Street meant highway improvements would be necessary before any development.

Mr Lund proposed to secure these via a unilateral undertaking by promising to cover the costs of the road improvements. 

He argued these could be delivered through Kirklees’ exercise of its private street works powers under sections 205–208 of the Highways Act 1980.  

Objections were though raised by other landowners and Mr Lund contended these were immaterial considerations in the planning appeal, a stance that formed the basis of his first ground.

Deputy Judge Ridge said: “The claimant's submission that landowner objections were immaterial misunderstands the nature of the inspector's task. He was not determining the planning merits of the landowners' views; he was assessing whether there was a realistic prospect of the authority resolving to use its powers. Evidence bearing on the prospects of the use of highway powers was plainly material.”

She said it was not arguable that the inspector took into account immaterial considerations as he had “applied his planning judgment to the question of whether there was any prospect of the necessary improvement works being undertaken in a three year period”.

The second ground was that there was no legal basis to require that planning permission must be refused when it appears to be impossible it would ever be implemented, and that Planning Policy Guidance created an expectation that conditions will not be used where there are no prospects of the action in question being performed within the lifetime of the planning permission.

Deputy Judge Ridge said: “The inspector's reasoning shows a clear evaluative conclusion, and the progression from ‘cannot be sure’ to ‘no prospect at all’ reflects the development of his reasoning, not a contradiction. The reasons given were adequate and intelligible.”

She dismissed the third ground that the inspector failed to give adequate reasons for a conclusion that the use of s205 powers in imposing works upon unwilling landowners was a basis for concluding there was no prospect of the works being completed within three years.

“The claimant's unilateral undertaking did not compel the highway authority to act, nor did it remove the political and practical uncertainties identified,” the judge said.

“The claimant's argument that objections under section 208 are limited does not address the inspector's concern which was about whether the highway authority would resolve to initiate the process at all.”

She also dismissed the fourth ground, an irrationality challenge to a conclusion there was no prospect of the works being done in a three-year timeframe.

Kirklees had said it wished to continue to explore options given the site is allocated for housing, “but there were hurdles to overcome and the inspector had concluded that there was no prospect of those hurdles being overcome in the next three years”, the judge said. “It is not arguable that this was irrational.”

Deputy Judge Ridge concluded: “Finally, the challenge to the inspector's planning judgment is, in substance, an attempt to re-argue the planning merits. It is not arguable that the conclusion reached was irrational and not open to the inspector on the evidence.”

Mark Smulian