The retrospective application of rules and regulations will always create a sense of injustice.
The High Court recently considered a case where the occupation of land pre-dated regulations being applied to it.
Background
The Claimants applied for planning permission to build a house with stables on agricultural land in West Sussex.
The local authority refused permission because the development was unsustainable and not readily accessible by sustainable transport. The Claimants appealed to the Planning Inspectorate. Meanwhile, they moved on to the site with a touring caravan. They also constructed what was described as a temporary stable block.
In 2021, Nature England issued a position statement on water neutrality in the area. Water neutrality is achieved when water use after development is the same, if not lower, as before. Nature England observed that existing water abstraction could be impacting the area, and development must not add to that.
The Planning Inspectorate dismissed the appeal. The Claimants asked the High Court to quash that decision. They challenged the approach to water neutrality and contended that there should have been a split decision in favour of the proposed stable block regardless.
Judgment
Dismissing the appeal, the High Court held that the approach of the Planning Inspectorate was not beyond the range of what was reasonable. Instead, it reflected the Inspector’s judgment on how the guidance from Nature England applied to the instant case. This approach was consistent with the guidance. Further, it was consistent with the pertinent Regulations. The Inspector was not required to address the question of a split decision.
The judge did, however, express sympathy for the Claimants’ position:
“Their application for permission was made over [five] years ago. They were refused planning permission by the [local authority] against officer recommendation. In the meantime, the pandemic caused delays and during those delays an unexpected complication (water neutrality) arose which required a strategic solution – which, I was told, is not yet in place. Nevertheless, the Inspector’s task was to determine the appeal taking account of the circumstances as they existed at the date of his decision and based on the evidence before him. I have concluded that he did so lawfully.”
Comment
Although the Claimants’ occupation of the site pre-dated the guidance from Nature England, that occupation was itself in breach of planning control. To be exempt from the requirement to demonstrate water neutrality, their occupation must be legitimate, as would have been evidenced by planning permission. It wasn’t.
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