Law Report: No extension of hostel because of neighbours' fears

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When considering an application for planning permission to extend a bail and probation hostel, the fear and apprehension felt by the occupiers of neighbouring land because of past incidents caused by the behaviour of hostel residents was a material consideration which could be taken into account.

West Midlands Probation Committee v Secretary of State for the Environment; Court of Appeal (Lord Justice Hirst, Lord Justice Swinton Thomas and Lord Justice Pill) 7 November 1997

The Court of Appeal dismissed the appeal of the West Midlands Probation Committee against the refusal of planning permission for the extension of a bail and probation hostel in Aldridge, West Midlands.

Planning permission had been granted in 1980 for the erection of a secure unit for severely disturbed adolescents. It was converted into a bail hostel in 1989, it being determined that planning permission was not required for the conversion. The hostel provided accommodation for up to 12 bailees, with six staff during the day and two at night. The proposed extension would accommodate an additional eight bailees, with some increase in staffing.

Robert Griffiths QC (Wragge & Co, Birmingham) for the probation committee; Michael Bedford QC (Treasury Solicitor) for the Secretary of State.

Lord Justice Pill said that the inspector who had determined the probation committee's appeal against the refusal of planning application had defined the issues in the case as being:

1) whether the scheme would noticeably impair the living conditions that nearby residents might reasonably expect to enjoy in such an area; and 2) whether the need to provide more bail hostels throughout the West Midlands would provide a sufficiently cogent reason to warrant expansion of the hostel.

On the first issue he found that the hostel had attracted numerous police visits, many late at night or early in the morning, and had concluded that the proposed expansion would be likely to increase significantly the disturbance of those living nearby. He had also taken account of residents' fears and apprehensions of criminal and other intimidating behaviour by the residents, which he had concluded would be accentuated by the proposed development.

The following propositions, relevant to the first issue, emerged from the authorities: the impact of a proposed development upon the use of and activities upon neighbouring land might be a material planning consideration; in considering that impact, regard might be had to the use to which the neighbouring land was put; and justified public concern about emanations from land as a result of its proposed development might also be a material consideration.

The contentious point in the present case was whether behaviour on and emanating from the development land in question attracted the operation of those principles. The "particular purpose of a particular occupier" of land was not normally a material consideration in deciding whether the development should be permitted. A significant feature of the present case was the pattern of conduct and behaviour found by the inspector to have existed over a substantial period of time, including the pattern of responses of the police to events at the hostel.

Fear and concern felt by the occupants of neighbouring land was as real in the present case as in one involving polluting discharges, and was as relevant to their reasonable use of the land. The pattern of behaviour was such as could properly be said to arise from the use of the land as a bail and probation hostel, and did not arise merely because of the identity of a particular occupier or of particular residents.

If that were right, the weight to be given to the effect of the activity upon the use of the neighbouring land was a question of planning judgment, as was the weight to be given in that context to the more intensive use proposed by the development in issue.

Turning to the second issue, there was a potential clash of interest between the Secretary of State for the Environment and the Home Secretary, and the extent of the inspector's assumed power to challenge Home Office policy, and indeed to criticise it as inconsistent, might be scrutinised in a future case.

The inspector's conduct did not, however, invalidate the conclusion he had reached in the present case. His finding had been based upon the application of planning criteria to a particular site, and followed a procedure at the inquiry to which no obejction had been taken. The appeal would be dismissed.

- Kate O'Hanlon, Barrister