National park authority fails in Planning Court challenge to decision by inspector to grant permission for home extension

No error was made by a planning inspector who granted an appeal to extend a home after the initial application was rejected by the New Forest National Park Authority (NFNPA), the High Court has found.

The authority brought the case against the Secretary of State for Housing, Communities and Local Government and applicant Simon Lillington.

Mr Justice Mould heard Mr Lillington wanted to build a first floor, rear extension to a property in Linwood, and the inspector granted his appeal on the basis of written representations.

The NFNPA sought planning statutory review on two grounds: that the inspector misdirected himself on a policy in the local plan, and that he failed to discharge the enhanced duty in section 11A(1A) of the National Parks and Access to the Countryside Act 1949.

Mould J said in his judgment that the inspector had considered the impact of Mr Lillington’s proposed extension was a breach of the local plan, but not one sufficiently serious to merit rejection.

The inspector had concluded that very little weight need be given to it as Badger Cottage was in an isolated location and the extension would not be large.

He had found: “Whilst the proposed development would exacerbate the existing conflict with Policy DP36, it would not cause adverse impacts with respect to the locally distinctive character of the built environment of the New Forest and the range and mix of housing stock available.”

The NFNPA argued the inspector had misdirected himself because the local plan was intended to maintain strict control over extensions to dwellings in the national park.

Any proposed extension which increased the size of the existing dwelling beyond a prescribed floorspace limit of 30% was inappropriate under the terms of the policy, unless there were exceptional circumstances, it argued.

Mould J said he accepted the appropriateness of a proposed extension should be judged by applying the floorspace limits in the policy, and that a proposed extension that exceeds those and is not justified by exceptional circumstances would be inappropriate.

But the judge said even though inspector made a clear finding of conflict with the local plan policy, it was “nevertheless necessary for him to consider the weight that he should give to that conflict with development plan policy”.

He gave very little weight and recorded his reasons. Mould J said: “It is obvious that where a planning decision maker wishes to assess the weight that they should give to a policy in the development plan with which the planning application before them is in conflict, they will take account of the policy's purpose.

“They will consider what the policy maker seeks to achieve through the application of the policy. Policy does not exist in a vacuum. It is promulgated for a practical purpose. Planning policies, whether at national or local level, are adopted for the purpose of furthering particular objectives or purposes in relation to the development and use of land.”

Conflict with the local plan was “not of itself necessarily determinative of the question whether the proposed development was in accordance with the development plan” as the inspector had to consider the whole of the material before him, which was a matter for planning judgment, and the inspector acted reasonably in giving very little weight to the plan conflict, Mould J said.

Turning to the 1949 Act issue, Mould J said: “As things now stand, in my judgment, when determining an application for planning permission in relation to land within the area of a national park, it is necessary for the decision maker to consider whether the proposed development will leave unharmed [its] the natural beauty, wildlife and cultural heritage…in its existing state.

“If the decision maker is satisfied that the proposed development will leave the natural beauty, wildlife and cultural heritage of the national park unharmed, he or she may grant planning permission on the basis that he or she has thereby discharged the duty under section 11A(1A) of the 1949 Act to seek to further the statutory purpose under section 5(1)(a) of that Act”.

He said there was no justification for thinking the inspector failed to discharge the duty to seek to further the statutory purposes under section 5(1) of that Act.

Mark Smulian