Perilously close

An inspector has granted planning permission for an earth-sheltered dwelling in the east Midlands countryside, having found that it would have the wow factor (DCS Number 400-035-511). 

There could be little doubt, the inspector found, that the proposed state-of-the-art dwelling had been carefully and sensitively designed to the most exacting environmental standards. He also remarked that those parts of the dwelling that would be visible from outside the site would have a striking contemporary appearance that would add a new and architecturally distinct element to the local landscape. In short, he considered that the house would possess the wow factor. 

That’s the good news. 

The not-so-good news is that the inspector upbraided the council for failing to adduce any positive evidence of its own to support its case that the development would be visually intrusive and would harm nearby heritage assets. He reminded them that inspectors may use their powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made by another party. 

The inspector explained that it is as much for the council to make out its case as to why planning permission should be refused as for the appellant to make out a case that it should be granted. Moreover, for the council to have acted reasonably, it must produce evidence to substantiate each reason for refusal. At the appeal stage, however, the inspector recorded that the council had simply repeated the contents of its officer report with one or two minor additions. He considered that it had manifestly failed to present a positive case to explain how the development would cause unacceptable harm to the form and character of the area or nearby heritage assets. Instead, it sought mainly to rely on a perceived lack of information. Not only did this contradict its assertion that the dwelling would be visually intrusive, he reasoned, but most of the concerns raised were either irrelevant to the actual reasons for refusal, were addressed by the submission of additional information at the appeal stage, or could have been dealt with by condition.

The inspector determined that because of these failings the council had come ‘perilously close’ to crossing the unreasonable behaviour threshold. Nevertheless, he exercised his discretion not to initiate an application for costs on this occasion, warning the council to take note of his comments to avoid any prospect of such an award being made in the future. 

Section 6.141 of DCP Online lists further examples of unreasonable behaviour which risk a costs award.