Judicial Review proceedings were brought against Cheshire East Council's decision to grant planning permission for a development at Broad Heath House, Slade Lane in Over Alderley earlier this year.
The Judicial Review, brought about by a disgruntled neighbour, was successful and therefore the planning permission which had been granted to Mr and Mrs Wren on 8th April 2009 has been quashed by the High Court - at a cost of £46,000 to the council.
The Council is required to meet its own external costs of defending this action, which amounts to £12,929.95, and meet the claimants costs which have been agreed at £32,987.50.
This case concerned planning application 09/0842M, which was for the replacement of a dwelling within the Green Belt. The application was received by Macclesfield Borough on 2nd February 2009 and determined by Cheshire East on 8th April 2009. The replacement dwelling included a large entirely subterranean basement which had the effect of significantly increasing the volume and gross floor area of the replacement dwelling as compared to the original but with much smaller increases in height and footprint.
The application had to be determined taking into account the guidance in Planning Policy Guidance 2 Green Belts and particularly paragraph 3.6. That guidance indicates that a replacement dwelling may not be "materially larger" than the dwelling it replaces and this case centred on whether the Council, in granting planning permission, had applied the right test.
The challenge to Cheshire East's decision was two-fold. Firstly that the Council had failed to show that it had properly taken into account the extent and effect of the basement because whilst the officer's report, which recommended that the Committee should approve the application, mentioned the basement it was alleged that this was solely to do with issues of visual impact and not (as other case law provided) in order to make an objective size comparison.
Secondly, even if the Council had properly taken account of the basement as required by the case law, the decision was flawed because it would be perverse for a local authority to conclude that, on the facts here, the replacement dwelling was not "materially larger".
The full hearing took place on 11th May 2010 before Mr Justice Langstaff. The Judge decided that he could not be certain from the documentary evidence that the Council had properly considered the basement in determining if the replacement dwelling was "materially larger" and so quashed the grant of planning permission on that basis.
Mr Justice Langstaff did not attempt to define the term "materially larger" and it is clear from his statement that the Local Planning Authority are entitled to take the view that in a given set of circumstances a proposed replacement dwelling which has a basement is not necessarily materially larger in the context of Planning Policy Guidance 2, and therefore not inappropriate development.
While the Officer's report was approved by a number of Officer's prior to reaching the Committee, the Judge was of the view that the basement issue was not clearly covered within the report, and therefore had not been clearly in the minds of members when they were making the decision. As such he was not able to determine whether proper regard had been had to the required points and if those points had been dealt with, that a different decision would not have been reached.
This High Court decision will be discussed at a meeting of the Strategic Planning Board tomorrow, Wednesday 8th December. As a result of this ruling the planning application needs to be re-determined and the comments of the Judge need to be taken in to account when determining future applications for replacement dwellings in the Green Belt across Cheshire East.
So what implications will this ruling have on future planning applications?
The Officer may well have adopted a common sense approach when making his recommendation for planning application 09/0842M, because whilst Planning Policy Guidance 2 Green Belts does indicate that a replacement dwelling should not be "materially larger", the purpose of the guidance is to protect the most important attribute of Green Belts, which is their openness, and surely a large underground leisure complex is less intrusive than a separate complex within the grounds of Broad Heath House, which could be possible under permitted development rights.
The Strategic Planning Board needs to provide guidance to Planning Officers to enable them to determine whether applications for replacement dwellings in the Green Belt are "materially larger" to minimise the likelihood of another expensive Judicial Review which surely the council cannot afford at a time when serious cuts are being made.
The real losers in this legal battle though are Chris and Sue Wren who have lived and breathed this planning application for nearly two years. The council may have lost £46,000 but the Wren's, who have lived at Broad Heath House for 30 years and raised their two sons there, have lost a lot more. They have also been left waiting, having received no communication at all from Cheshire East since the hearing on May 11th.
Decisions by the Planning Department have an enormous effect on people's lives and can have very serious financial implications and this ruling has highlighted that there is a grey area within in the law which desperately needs defining, before another unfortunate couple find themselves victims of our legal system, like the Wren's have. There should be no margin for interpretation in regard to "materially larger".
Comments
Here's what readers have had to say so far. Why not add your thoughts below.
I have some sympathy for the Wren's if they were trying to preserve the aesthetics of the property by building underground and leaving the visible portion relatively unchanged.
Chris told me "Our item was next to last on the Agenda which arrived about 3 hours into the meeting. About 2 minutes later it was all over as the Committee decided to delay a discussion until the February meeting.
"I have asked Peter Yates, our Agent, to meet with Adrian Fisher, Head of Planning, this week to see just what is going on as this additional delay is quite unacceptable by any reasonable standard of behaviour."