Planning permission sought for leisure complex – Inspector recommending permission be granted – Secretary of State for the Environment refusing permission – Applicants seeking judicial review – Whether Secretary of State wrongly interpreted policy – Whether reasons for Secretary of State’s decision unlawful
The applicants applied for outline planning permission for the construction of a leisure complex at Chestnut Avenue, Eastleigh (the site), comprising a multiplex cinema consisting of nine to ten screens, two restaurants, a family entertainment centre and parking. The applicants also applied for permission for change of use of land to the south west of the site to provide car parking facilities. At the inquiry the proposals were supported by the district council, but opposed by Hampshire County Council, Southampton City Council and Fareham Borough Council. After an inquiry, the inspector recommended that permission be granted. The Secretary of State, however, refused planning permission.
The applicants challenged the decision under section 288 of the Town and Country Planning Act 1990. It was contended, inter alia, that the Secretary of State had wrongly interpreted the Hampshire County Structure Plan, policy R1, which provided that, “In built-up areas . . . development which improves or extends the range of recreational . . . facilities will normally be permitted”, in concluding that the site was not in a built-up area. It was further contended that the Secretary of State had acted unlawfully in reaching the conclusion that the inspector had misapplied the “sequential test” contained in policy PPG 6, which provided that all potential town centre options were to be thoroughly assessed before less central sites were considered for development.
Held The application to quash the decision of the Secretary of State was allowed.
1. It was not a matter for the court to determine the meaning of a planning policy as a matter of law because it did not confer rights or impose duties that were legally enforceable. The decision of whether to grant planning permission was an administrative decision which was only reviewable on the principles of administrative law, and it had not been unreasonable or contrary to the ordinary and natural meaning of the policy for the Secretary of State to treat the policy as applying to an existing but not to a proposed built-up area.
2. However, the Secretary of State’s conclusion that the “sequential test” had not been properly applied as the inspector had not explored town centre sites for a more modest development was fundamentally flawed. The Secretary of State had failed to have regard to material considerations and had placed reliance on passages of the inspector’s report which the report as a whole could not reasonably be said to have supported, and therefore his decision was unlawful.
Jeremy Sullivan QC and Peter Towler (instructed Gouldens) appeared for the applicants; Alun Alesbury (instructed by the Treasury Solicitor) appeared for the respondents.
