Linden Developments Limited v Secretary of State for Transport, Local Government and the Regions

A site-specific planning policy must be construed as a whole. A stated floorspace figure may be a ceiling rather than a development target. Development is permitted only if the policy’s criteria are satisfied.

A planning inspector is required to determine the proposal before him. The inspector need not identify the maximum alternative scale of development or specify modifications which might overcome his objections. The adequacy of reasons is assessed in the circumstances of the particular case, including the developer’s stated position on viability.

Linden sought outline planning permission for the redevelopment of Clark’s Farm with substantial office floorspace, roads and car parking. The inspector refused permission, relying on harm to the strategic gap, conservation interests and traffic-generation concerns under emerging policy DEV 17.

Ouseley J allowed Linden’s statutory appeal, holding that the inspector had misunderstood or ignored DEV 17, adopted a thematic approach to traffic, and failed to give adequate reasons. The Secretary of State appealed. The central issues were the proper construction of DEV 17, the scope of the inspector’s assessment, and whether his reasons were legally adequate.

1. Appeal allowed unanimously. The inspector’s decision was lawful and the judge’s order was set aside.
2. DEV 17 had to be construed as a whole, including its reasoned justification. The reference to a floorspace not exceeding 15,250 sq m was a ceiling, not a target. The policy contemplated employment development of that scale only if its detailed criteria were met. If those criteria could not be satisfied, the development was neither permitted nor required by the policy.
3. The inspector had considered the traffic implications of the proposal before him. His references to the proposed scheme, its scale, prestige headquarters character and likely employee catchment showed that he had not ruled out every possible development at the site. It was impermissible to extrapolate his objections to development of any scale.
4. The inspector had understood the objectives of DEV 17. He was entitled to conclude that the policy’s criteria, including the highway criterion, prevented those objectives from being achieved by the proposal. He was not required to state the maximum scale of development which might have been acceptable.
5. The duty to give adequate reasons did not require the inspector to explain what modifications or alternative development would overcome his objections. Following Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, the question was whether the alleged deficiency substantially prejudiced the applicant. Linden had presented its case on the basis that only development of the proposed scale was financially viable, so it could not complain that the inspector had not devised a smaller scheme.
6. The inspector’s failure expressly to assess additional highway measures did not invalidate the decision. Those measures addressed only one of several concerns about access to Sandhurst station, and could not have altered the conclusion. Any possible misunderstanding concerning later commercial and industrial development was immaterial because the inspector stated that, in any event, the proposed office development would have only a limited employment effect.

• Court of Appeal (Civil Division): Linden Developments Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1737. Appeal allowed.
• Administrative Court, Queen’s Bench Division: Ouseley J allowed Linden’s appeal from the inspector’s refusal of planning permission and held that the inspector had erred in law.
• Planning inspector: dismissed Linden’s appeal against Hart District Council’s refusal of outline planning permission.