Wyatt v Fareham Borough Council and others –  EWHC 1434 (Admin)
On whether the application failed to comply with the Development Management Order and the NPPG by not including the access to the site in the application site boundary (red line plan):
“118. By Ground 6 it is contended that Fareham did not have power to determine the application because it did not comply with the requirement to give notice to the owner of land which should have been within the red line of the application, contrary to article 7(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 [SI 2015 No 595] (“the DMPO”). Put in these terms, this is a straight vires challenge, although there is no evidence that any relevant landowner was not notified by some other means.
- Article 7(1) provides as follows:
“7.— General requirements: applications for planning permission including outline planning permission
(1) Subject to paragraphs (3) to (5), an application for planning permission must—
(a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the same effect);
(b) include the particulars specified or referred to in the form;
(c) except where the application is made pursuant to section 73 (determination of applications to develop land without conditions previously attached) or section 73A(2)(c) (planning permission for development already carried out) of the 1990 Act or is an application of a kind referred to in article 20(1)(b) or (c), be accompanied, whether electronically or otherwise, by—
(i) a plan which identifies the land to which the application relates;
(ii) any other plans, drawings and information necessary to describe the development which is the subject of the application;
(iii) except where the application is made by electronic communications or the local planning authority indicate that a lesser number is required, 3 copies of the form; and
(iv) except where they are submitted by electronic communications or the local planning authority indicate that a lesser number is required, 3 copies of any plans, drawings and information accompanying the application.”
- Mr Jones pointed to articles 7(1)(c)(i) and (ii): the requirements that applications for outline planning permission be accompanied by a plan identifying the land to which the application relates; and any other plans, drawings and information necessary to describe the development in the application. Reading these requirements alongside the Planning Practice Guidance (“PPG”), Mr Jones submitted that the applicant for outline planning permission ought to have included Brook Avenue in the red line of the location plan.
- The relevant part of the PPG provides:
“What information should be included on a location plan?
A location plan should be based on an up-to-date map. The scale should typically be 1:1250 or 1:2500, but wherever possible the plan should be scaled to fit onto A4 or A3 size paper. A location plan should identify sufficient roads and/or buildings on land adjoining the application site to ensure that the exact location of the application site is clear.
The application site should be edged clearly with a red line on the location plan. It should include all land necessary to carry out the proposed development (e.g. land required for access to the site from a public highway, visibility splays, landscaping, car parking and open areas around buildings). A blue line should be drawn around any other land owned by the applicant, close to or adjoining the application site.” [emphasis supplied])
- There was no dispute that access to the site of the Proposed Development from the public highway (Brook Lane) would be via Brook Avenue, nor that Brook Avenue was not in fact included within the red line area of the location plan. The question for this court is whether the failure to include Brook Avenue within the red line area meant, as Mr Jones submitted, that Fareham did not have vires to determine the application. Some support for Mr Jones’ case is to be found in the relevant passage from the PPG.
- On this last matter, I accept the submissions made by Mr Mould as to the status of the PPG. It is a guidance document which is subject to change without forewarning or consultation (see Solo Retail Ltd v Torridge District Council  EWHC 489 (Admin) at para 33). It is not binding; it cannot be determinative of the vires question. When considering a vires challenge such as this, one must, of course, examine the relevant legislative provisions.
- Article 7(1)(c)(ii) does not require that “the development which is the subject of the application” is shown in the location plan. It allows for the development to be described in “any other plans, drawings and information necessary”. The Planning Statement that was submitted with the application explained, in sections 7 and 8, that the site benefits from a right of way over Brook Avenue in order to access Brook Lane. In my judgment, Brook Avenue does not form part of the development which is the subject of the application. But even if it does, by virtue of the fact that Brook Avenue was described in the Planning Statement, being “other…information” accompanying the application, there was no failure to comply with article 7(1)(c)(ii).”