DC Casebook: In depth - Council faces costs after refusal of flats on unused leisure space

A proposal for 14 flats in a Hertfordshire housing estate has been permitted provided the developers ensure that an alternative area of open space is secured for the next 80 years.

The estate had included a hotel with swimming pool, which was to be retained as part of open space provision. Permission had been granted for its use as a kickabout area but this was never implemented. The council had maintained the land for some time but the owners eventually gated and locked the area to prevent recreational use. The appellants argued that this area was suitable for flats and promised an alternative area for open space.

Local residents opposing the scheme were aggrieved that the council had not enforced the original permission. While the council claimed that enforcement action was a possibility, the inspector saw little evidence to support this claim and deemed it unlikely that the open space use would be resumed. Dismissing the appeal would not resolve this difficulty, he reasoned.

While the proposed replacement space would not be like for like or add to overall greenspace in the area, it comprised an attractive area of woodland already used for walking and informal recreation. An undertaking submitted by the appellants would ensure public access and safeguard it from alternative development.

The inspector agreed that it would also be possible to ensure the improvement and maintenance of footpaths on the site through planning conditions. Since there did not appear to be any significant deficiency in open space provision in the locality, he decided that the balance lay in granting permission.

He made a partial costs award to the appellants. A previous inspector had found no legal basis for ensuring that the site's use as open space could be legally enforced, he observed. Consequently, he held that the council had acted unreasonably in refusing permission on the basis of a loss of amenity space. He found claims that car parking and landscaping were inadequate unfounded, reinforcing his decision to award costs.

DCS Number 100-069-472

Inspector John Felgate; Hearing.

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