Glenn Kinnersley, R (on the application of) v Maidstone Borough Council

22 February 2023

[2023] EWCA Civ 172

Court of Appeal

The council approved a building project but didn't check the whole area's environmental impact, only the part to be built on. The court said they had to check the whole area, so they overturned the approval.

Key Facts

•Mr. Glenn Kinnersley appealed the grant of planning permission and listed building consent by Maidstone Borough Council to Mr. Paul Dixon for the redevelopment of a 0.2-hectare site comprising barns, a walled garden, and a driveway.
•The redevelopment involved converting barns into dwellings and altering the walled garden.
•The appeal centered on the interpretation of Policy DM5 in the Maidstone Borough Local Plan concerning development on brownfield land.
•The key dispute was the definition of "site" in Policy DM5: whether it included the entire application site or only the brownfield land excluding residential gardens.
•A secondary issue concerned the consistency of the conservation officer's assessments of the existing building's impact on a listed building.

Legal Principles

Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise.

Section 38(6) of the Planning and Compulsory Purchase Act 2004

Planning policies should be interpreted objectively, in accordance with the language used, read in its proper context; they should not be interpreted as if they were statutes or contracts.

Tesco Stores Ltd. v Dundee City Council, Rectory Homes Ltd. v Secretary of State for Housing, Communities and Local Government

A decision on a critical issue (policy interpretation, aesthetic judgments, or assessments of need) may be a material consideration for subsequent decisions; departure requires reasons.

North Wiltshire District Council and the Secretary of State for the Environment and Clover, Vallis v Secretary of State for Local Government, R (Davison) v Elmbridge Borough Council, Fox v Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government

Outcomes

The appeal was allowed.

The Council misinterpreted Policy DM5 by only considering the environmental value of the studio building (brownfield land) and not the entire application site (including the residential garden).

The planning permission and listed building consent were quashed.

The Council's failure to consider the entire application site's environmental value rendered the decision unlawful.

The matter was remitted to the Council.

The Council must reconsider the application, assessing the environmental value of the entire application site and determining whether other criteria in Policy DM5 are met.

The second ground of appeal (inconsistency in conservation officer assessments) was dismissed.

The inconsistencies were not considered material, as the focus should be on the impact of the proposed redevelopment, not the existing building.

Glenn Kinnersley, R (on the application of) v Maidstone Borough Council

Key Facts

Legal Principles

Outcomes

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