Court of Appeal quashes planning permission for only having consideration of part of site

Maidstone Borough Council will have to reconsider a planning application after the Court of Appeal found the local authority misinterpreted its own planning policy on brownfield developments.

In Kinnersley, R (On the Application Of) v Maidstone Borough Council [2023] EWCA Civ 172, Lord Justices Lewis, Moylan and Bean found that the local authority should have considered the environmental value of the applicant's site as a whole – which included surrounding gardens – despite the council's argument that the definition of "site" did not extend beyond the specific buildings that the application concerned.  

The case revolved around Maidstone's interpretation of policy DM5 in its local plan, which was adopted in 2017.

The policy provides that the residential development of brownfield sites in the countryside which are not residential gardens will be permitted if it meets certain criteria, including a criterion that the "site is not of high environmental value".

In January 2021, Maidstone granted permission to convert two barns that sit on a 0.2-hectare plot from studios to dwellings. The application also requested permission to demolish and rebuild at a lower height a section of wall which forms part of a historic walled garden.

However, a resident who owns a neighbouring Grade II listed building named Hollingbourne House challenged the permission, arguing that the council wrongly applied its brownfield site policy in making the decision.

The claim was originally dismissed by the High Court in July 2022 before being heard by the Court of Appeal earlier this month (7 February).

At the Court of Appeal, the claimant advanced the following two grounds of claim:

1. The respondent had misinterpreted Policy DM5 as it had had regard only to the existing studio building when deciding whether the "site" was of high environmental value and failed to have regard to whether the site as a whole, that is, the studio building, the walled garden and driveway, was of high environmental value.
2. The respondent had taken an inconsistent approach to the assessment of the contribution made by the existing building. The officer had considered that the existing building had a negative effect on the setting of Hollingbourne House whereas previous officers had assessed the existing studio building as having a neutral impact. That change altered the baseline for assessment of the heritage impact.

In response to the first ground, the council submitted that the definition of 'site' is limited to the land where the residential development is to take place (leaving out of account that part of the application site is a residential garden).

Lord Justice Lewis did not regard the second ground of appeal was established, but ultimately, he favoured the appellant's case on the first ground, finding that the council "failed properly to interpret Policy DM5 in that it failed to consider whether the application site as a whole had environmental value".

"Rather it only considered whether part of the application site, that is, the existing studio building, had a high environmental value," he added.

As a result, he quashed the planning permission and the listed building consent and remitted the matter to the respondent.

The council will now have to reconsider the application, deciding whether or not the application site has high environmental value and whether the other criteria in DM5 are satisfied.

Moylan LJ and Bean LJ both agreed with Lord Justice Lewis.

Adam Carey