Development — Reserved matters — Local plan — Material considerations — Effect of inspector’s error — Whether inspector misunderstanding local plan policy — Whether inspector erring in application of statutory requirement — Claim allowed
The second defendant developer applied for approval of reserved matters pursuant to an outline planning permission that had been granted by the claimant council for the development of a substantial number of flats. The claimants, however, refused the application on the ground that it was unacceptable because it failed to provide any private outdoor amenity space for some of the intended flats. They considered that this would seriously compromise the level of amenity available to future occupiers and, as such, the proposed development was contrary to, inter alia, local plan policy H19.
The second defendant appealed to an inspector appointed by the first defendant who held an inquiry, made a site visit, and subsequently allowed the appeal. The claimants applied to quash that decision under section 288 of the Town and Country Planning Act 1990.
It was common ground that the inspector had misunderstood policy H19 in that he had treated Appendix 1 (which sets out guidelines with the main object of securing the availability of some usable informal sitting space) as supplementary planning guidance instead of treating it as part of the adopted Wycombe district local plan 2011.
The question was whether the inspector’s misunderstanding had caused him to err in his application of the statutory requirement under section 54A of the 1990 Act to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. The first defendant argued that the inspector had had regard to Appendix 1, that he had properly understood it and that his error was of no consequence.
Held: The claim was allowed.
The inspector’s decision would be quashed since, as a matter of principle, where an error of law that amounted to a failure to apply section 54A had occurred, the decision should be regarded as fundamentally flawed.
The court could not be sure that, had the inspector applied section 54A by reference to the full content of the policy plan, he would have come to the same conclusion since the conclusions to which he came were firmly based upon his attribution of a reduced status to Appendix 1. The court could not ignore that step in the inspector’s reasoning because it lay at the heart of the process that led to his conclusion. To do so would inevitably involve the court in reaching its own planning judgment by applying the balancing exercise under section 54A in order to fill the void created by the inspector’s failure to do so.
To accept the first defendant’s submissions would be to deprive the claimants from receiving a decision from the authorised body, on an important issue, namely whether their policy requirements were met by this development and, if not, whether material considerations indicated that the development was to be permitted nevertheless.
The claimants should not be left in the position where this decision stood, when it would inevitably be relied upon in the future by other applicants and where its true effect would be incapable being discerned.
Saira Sheikh (instructed by Sharpe Pritchard acting as agent for Wycombe District Council) appeared for the claimants; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; Reuben Taylor (instructed by Bevan Brittan) appeared for the second defendant.
Eileen O’Grady, barrister
