Miller and Others v Wycombe District Council

In adopting a local plan after a public inquiry, a local planning authority must consider the inspector’s report and recommendations and give proper, adequate and intelligible reasons addressing the substantial points raised. The authority remains the decision-maker and may disagree with the inspector, but it must explain any departure from material findings. Failure to do so may be a substantial flaw under the first limb of section 287(2)(b) of the Town and Country Planning Act 1990. It may also constitute non-compliance with regulation 16(1) under the second limb. Quashing requires substantial prejudice: an unsuccessful objection alone is insufficient. The applicant must show a decision-making flaw or substantial doubt that the decision rested on relevant lawful grounds.

Landowners challenged, under section 287(2)(b) of the Town and Country Planning Act 1990, the inclusion of their land within a local plan’s green-space policy L3. Following a public inquiry, the inspector recommended removal of the designation after finding that the site was scarcely visible. Wycombe District Council rejected the recommendation and retained the designation, giving reasons based on the site’s visual and physical importance.

Mr Gerald Moriarty QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division, ordered the relevant notation to be removed. The Council appealed. The central issue was whether the Council had complied with regulation 16(1) of the Town and Country Planning (Development Plan) Regulations 1991, and whether any failure substantially prejudiced the landowners.

By a majority, Lord Justice Pill and Lord Justice Mummery agreeing, the appeal was dismissed with costs.

1. The inspector’s report and recommendation formed an important part of the statutory procedure. Regulation 16(1) required the Council to demonstrate that it had considered the report, the recommendation and the findings supporting it. Reasons had to be proper, adequate and intelligible and address the substantial points raised. The degree of particularity depended on the issue being decided.
2. The inspector recommended removal of the designation because the site’s visibility was insignificant. The Council’s reasons repeated assertions about visual importance and coalescence but ignored the inspector’s findings and did not explain why it disagreed with them or preferred other considerations. That omission was a substantial flaw in the decision-making process. The landowners were substantially prejudiced because they were entitled to expect the inspector’s findings to be considered and any departure to be explained.
3. Following Save Britain's Heritage v Number 1 Poultry and Others [1991] 1 WLR 153, the deficiency could support quashing under the first limb of section 287(2)(b). Alternatively, the same failure constituted non-compliance with regulation 16(1), causing substantial prejudice under the second limb.
4. The inspector recommended but did not decide. The local planning authority remained entitled to reach its own view, including a different view on the facts or the significance to be attached to them, provided that it gave proper reasons.
5. Lord Justice Staughton dissented. He considered the Council’s reasons sufficient because it could lawfully attach greater significance to the site’s limited visibility than the inspector had done. He would also have found no substantial prejudice, since there was no substantial doubt that the Council had acted within its statutory powers, and would have allowed the appeal. Leave to appeal was refused.

• Court of Appeal (Civil Division) [1997] EWCA Civ 1116: by majority, dismissed the Council’s appeal with costs and refused leave to appeal.
• High Court, Queen’s Bench Division: Mr Gerald Moriarty QC, sitting as a Deputy High Court Judge, ordered removal of the local plan’s L3 notation from the land.