In Secretary of State for Communities and Local Government v BDW [2016] EWCA Civ 493, the Court of Appeal had to consider whether an inspector deciding an appeal against a refusal of planning permission failed to discharge the duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to make the decision in accordance with the development plan unless material considerations indicated otherwise.
Stafford Borough Council had refused to grant permission for the development of 114 homes due to the noise and traffic impact on the local road network. The developer appealed but the council’s decision was upheld by an inspector, who found that the benefits of the scheme were outweighed by the disadvantages. The developer then challenged the ruling in the High Court.
The High Court upheld that challenge on the basis that the inspector had failed to state in terms that she had in the forefront of her mind her duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to reach her decision in accordance with the local development plan unless material considerations indicated to the contrary.
The secretary of state for communities and local government appealed against the order of the High Court.
The Court of Appeal upheld the appeal against that decision, noting that the inspector was neither required to recite a mantra, nor to spell out the extent to which she considered the proposals would accord with, or not accord with, the development plan. The Court of Appeal said government planning inspectors are experts in their field but their role is a practical one, requiring common sense, and their decisions do not have to be expressed with the same precision as an act of parliament. On a common sense reading of her decision as a whole, it was clear that she had concluded that the proposals conflicted with the development plan and would thus be unacceptable unless justified by other material considerations. The way in which she had performed a classic balancing exercise could not be faulted. The inspector had undertaken the balancing exercise appropriately and lawfully in the particular circumstances of the case before her.
The appeal was allowed.
Martha Grekos is a partner and head of planning at Irwin Mitchell
