In Malvern Hills District Council v Secretary of State for Housing, Communities and Local Government and another [2021] EWHC 129 (Admin), the High Court has warned against the pitfalls of over-scrutinising planning inspectors’ decisions.
The case concerned an enforcement notice requiring the removal of a large shed used to store an ex-British Railways steam-operated crane, stating that its size, isolated in the landscape, had a significant harmful effect on the open countryside, with the reasons also making reference to the failure of the owners to demonstrate why the crane could not be stored elsewhere.
When the notice was subsequently appealed to the Planning Inspectorate, the council also submitted that the shed obstructed a footpath, the diversion of which could not be secured by a retrospective planning condition. In response, the appellant contended that an alternative route could be secured by a footpath diversion order.
In quashing the notice to grant planning permission, the inspector found that the shed did not cause unacceptable harm to the landscape and that the obstruction of the footpath was not a material factor in considering the planning merits of the building. He also pointed out that granting planning permission would not authorise its obstruction, as other procedures exist to deal with this.
The council challenged the inspector’s decision on three grounds. The first was that the blocking of the footpath was a material consideration under paragraph 98 of the National Planning Policy Framework, which requires that planning decisions protect public rights of way. The court found that as the inspector had expressly referred to the footpath and considered its diversion, paragraph 98 was considered and the finding that it was not a material factor was not a failure to take into account a material consideration.
The second ground alleged a failure of the inspector to consider alternative brownfield sites for the shed, as required by local plan policy. The court rejected this, finding that the inspector’s express reference to the policy and consideration of alternative storage sites strongly indicated that the policy was wholly taken into account. The court also confirmed that application of policy is a matter of planning judgement only challengeable on grounds of irrationality, referencing Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69.
The third ground alleged that the inspector came to conclusions on the lack of alternative storage based on speculation and immaterial considerations, without evidence from the appellant, and had unfairly failed to give the council an opportunity to respond to these. The court disagreed, finding that the inspector had reached sound conclusions based on the evidence before him. It was up to the council to ensure that it presented evidence to support its position.
This case is a clear reminder about the dangers of applying forensic analysis to inspectors’ decision letters, and confirms the already-established principle that a decision-maker need not expressly refer to every policy or material consideration in order to demonstrate that these have been adequately considered and interpreted correctly.
Erica Snellgrove is a solicitor in the planning team at Irwin Mitchell
