Wandsworth London Borough Council v Secretary of State for Transport, Local Government and the Regions

At the permission stage, the court must consider the ground actually advanced. A challenge is properly arguable where it alleges that a planning decision-maker failed to address a central part of the merits case, even though a separate challenge to the construction of the relevant policy documents would have no realistic prospect. The function or role of a retail location may be material to whether it is an existing centre, particularly where that issue was central to the inspector’s reasoning. Permission was granted to pursue that ground, without deciding the substantive merits.

Wandsworth challenged the Secretary of State’s decision to grant Tesco planning permission for a food store and flats at the former South London Hospital for Women. The challenge was brought under section 288 of the Town and Country Planning Act 1990. An inspector had recommended refusal, but the Secretary of State reached the opposite conclusion. Lawrence J dismissed Wandsworth’s claim in the Administrative Court on 11 July 2002. On a renewed application, the Court of Appeal considered whether Wandsworth had an arguable case that the Secretary of State had failed to address the function of Balham Hill in deciding whether it was a centre under the relevant planning policies.

Permission to appeal granted.

1. The court distinguished between two possible grounds. A challenge based only on the language of the relevant planning policy documents, and whether Balham Hill could be regarded as an existing centre, had no real prospect of success.
2. Wandsworth’s actual ground was that the Secretary of State had failed to consider the way Balham Hill functioned in the locality. That issue had been central to the inspector’s reasoning, while the decision letter appeared not to address it. The alleged omission therefore raised a properly arguable ground of appeal.
3. The planning context was material. If the proposed retail development was in a centre, the policy framework did not require need to be demonstrated. If it was outside a centre, need had to be shown. The court did not decide whether the Secretary of State had erred in law or whether the decision should ultimately be quashed.
4. The renewed application was granted. The appeal was directed to proceed before a court of three, with an estimated hearing time of two hours. There was no order for costs.

1. Court of Appeal (Civil Division): Permission to appeal had initially been refused on the papers by Brooke LJ. On renewal, Laws LJ granted permission on 8 October 2002, with no order for costs.
2. Administrative Court: Lawrence J dismissed Wandsworth’s claim under section 288 of the Town and Country Planning Act 1990 on 11 July 2002.