Stimpson, R (on the application of) v First Secretary of State

A planning agreement reserving land for community use may be a material planning consideration. Its existence does not automatically require refusal of permission, particularly merely because it may hinder implementation. The decision-maker must assess its planning significance and decide what weight it deserves.

An inspector’s decision letter is read as a whole and in the context of the issues argued at the hearing. Minor unexplained references to policy will not justify quashing a decision where the outcome would inevitably have been the same. A conclusion that a greenfield housing proposal conflicts with PPG3 may be justified where there is an adequate housing-land supply. A judgment that potential community use remains possible is not irrational merely because a particular potential user has chosen another site.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision dismissing an appeal against refusal of outline planning permission for residential development at Foredown Road/Fox Way, Portslade.

The site was allocated for community facilities under the adopted local plan, was subject to a section 52 agreement reserving it for community use, and had not previously been developed. The claimant challenged the inspector’s treatment of the agreement, his interpretation and reasoning concerning development-plan policies and PPG3, and his conclusion that there remained potential demand for community use.

1. The application was dismissed. The claimant was ordered to pay the defendant’s costs, summarily assessed at £3,235. Permission to appeal was refused.
2. A section 52 agreement is capable of being a material planning consideration. The inspector was not entitled to treat the agreement as automatically preventing residential permission. However, he did not adopt that approach. He gave the agreement weight because it recorded an agreement between the local planning authority, the landowner and a prospective developer concerning the appropriate use of the site. The weight to be given was for the inspector to assess.
3. British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125 did not require a different result. That case concerned an authority’s refusal, as landowner, to enter into an agreement after permission had been found acceptable on planning merits. The present agreement was an existing planning arrangement concerning the site’s appropriate use.
4. Read as a whole, the decision letter adequately explained the inspector’s reasoning. The finding that the site was greenfield, together with the accepted existence of an adequate housing-land supply, supported the conclusion that residential development conflicted with PPG3. Residential development also conflicted with the allocation and community-use objectives in the relevant development-plan policies.
5. The reference to policy BE1 was inadequately explained, but the defect was immaterial. The decision would have been the same having regard to the other policies, the development brief, the agreement and PPG3.
6. The inspector had considered the continuing potential for community use. He was entitled to treat an objection from a medical practice seeking a site as evidence of continuing interest, even though that practice later relocated elsewhere. That conclusion was not irrational or perverse.

The inspector dismissed the claimant’s planning appeal against refusal of outline planning permission. The Administrative Court dismissed the section 288 challenge. Permission to appeal was refused.