Recent decisions illustrate the scope for Ministers to make planning decisions contrary to the recommendation received from their appointed experts.
Consent risk
The amount of consent risk is a distinct feature of the planning systems throughout the UK. Unlike the zoning systems operated in many areas of the world, UK decision makers have considerable discretion. A judgment has to be made, weighing the various factors.
Decisions by Ministers
Where the decision on an application or appeal falls to be made by a Government Minister, a detailed report is prepared by an inspector/ reporter appointed by the Minister. The report contains a recommendation for their decision. That recommendation is not binding.
My previous blog mentioned Mossend International Rail Freight Park, Hyndford Quarry, and Cammo as examples of Scottish Ministers deciding contrary to recommendation.
Stonehenge
This month the transport secretary, Grant Shapps, approved a development consent order for the A303 to be turned into a dual-carriageway tunnel under Stonehenge.
The Examining Authority Report had recommended refusal, in part because of substantial harm to the significance of the designated heritage asset, and considerable harm to landscape character and visual amenity.
The Secretary of State preferred the opinion of Historic England that the level of harm would not be substantial. Also, the harm should be weighed against the public benefits of the development in the planning balance.
Culloden
Continuing the cultural heritage theme, the Scottish Ministers refused permission for a steading conversion, as overdevelopment in a very sensitive part of Culloden Battlefield.
They disagreed with the Reporter’s findings, that the proposal would not significantly alter the character of this part of the battlefield.
The proposal was an amended design of the previous planning permission granted
in 2015. However, a direction was issued by Scottish Ministers in March 2019 requiring notification of non-householder planning applications within historic battlefields due to increased public concern over new development within Culloden Battlefield.
Carnbroe
The existence of a planning permission was also a factor in the appeal dismissed by Scottish Ministers for an energy from waste plant near Carnbroe (Coatbridge).
Although the proposed was described as alterations to approved plans, the Reporter said it would be better characterised as a fresh application for a different form of energy-from-waste plant on a site previously approved for that use. The Ministers agreed.
The Ministers considered that the development would not protect the amenity of new development, and would represent over-development. For the same reasons, it would not represent good design.
A key issue was the in-principle support given by the development plan, and the extent to which that accepted some form of large visually prominent utilitarian building would be constructed on the site. The Ministers considered it did not involve an acceptance that any development on the site would necessarily have significant adverse visual effects.
Prospects of success
Weighing the evidence when making a planning decision can be complicated. These examples show the scope for different conclusions being drawn.
In the Stonhenge case, that resulted in consent being granted, whereas in the Culloden and Carnbroe cases permission was refused, despite recommendations to grant.
Assessing prospects of success can be difficult ....
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