In Horsham District Council v Secretary of State for Communities and Local Government [2015] EWHC 109 (Admin), the claimant council applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector on appeal granting planning permission to the developer for the erection of 160 dwellings on farmland. Its principal ground of challenge was that, in light of paragraph 64 of the NPPF, the inspector’s approach to the loss of views from the appeal site was unlawful. (Paragraph 64 states as follows: “Permission should be refused for development of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions”.)
Before the court, by means of a witness statement submitted by its planning officer, the claimant council sought to argue that an alternative scheme of development would have had less of an impact on landscape views, and that this was a material consideration to which the inspector should have had regard.
The court dismissed the application, holding that the inspector had not misunderstood or misapplied paragraph 64 of the NPPF. But the judge went on to state that, in any event, it was not a general principle in planning law that an acceptable proposal for development must be turned away because a better one might be put forward.
He cited the decision in First Secretary of State v Sainsbury’s Supermarkets Ltd [2007] EWCA Civ 1083, where the Court of Appeal stated that, in such a situation, the decision maker may refuse planning permission. His role, however, is to weigh the benefits and disbenefits of the development proposal before him, and to decide (if that is his planning judgment) that the proposal is acceptable, even if an improved balance of benefits and disbenefits could be achieved by a different scheme.
In the present case, the judge then criticised the claimant council for attempting to rely in court upon details of an alternative scheme that was not before the inspector, pointing out that the court has always deprecated attempts in applications under section 288 to re-open discussion of the planning merits by introducing such material in affidavits and witness statements. As Sullivan J – as he then was – had made clear in R (on the application of Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin), there will seldom be a need for anything beyond purely formal evidence to produce the decision letter and the material before the inspector relevant to the application.
John Martin is a planning law consultant
