The court of appeal considers a failure to apply the special circumstances test.

In R (Lensbury) v Richmond upon Thames LBC, the Court of Appeal quashed planning permission for a hydroelectric facility because the local authority had failed to comply with its duty under s 38(6) of the Planning and Compulsory Purchase Act 2004 to make a determination in accordance with relevant policies.

The policy in question was 7.7 of the London Plan, which stipulates that metropolitan open land (MOL) is protected by refusing inappropriate development, except in very special circumstances. Although the policy provisions make no reference to the National Planning Policy Framework (NPPF), the supporting commentary states that paras 79–92 of the NPPF apply to MOL. These include the very special circumstances test in para 87.

The planning application did not consider whether the development was appropriate or whether very special circumstances existed. It was assumed that the NPPF was not relevant. Consideration of the appropriateness was noted in the planning officer’s report, but the assessment was made in accordance with the authority’s Development Management Plan (DMP), which contained a broader definition of ‘appropriate development’ than in the NPPF.

The court found that the local authority had failed to appreciate that the planning application was for development that was inappropriate in the context of MOL and had therefore failed to ask itself the critical question of whether very special circumstances existed, which justified the granting of planning permission. The assessment of appropriateness in the report was in substance an assessment under the DMP rather than policy 7.7.