RicHMondshire District Council v First Secretary of State

Where a planning proposal conflicts with a development-plan policy, the decision-maker must identify and weigh any material considerations that justify departing from the plan. A finding that the development is unlikely to cause material harm does not, without more, establish compliance with the policy or lawfully justify permission.

The proper approach depends on the construction of the policy. A decision-maker may assess whether a policy is engaged and whether its stated threshold is met. If the proposal remains contrary to the development plan, however, the decision-maker must undertake the broader statutory balancing exercise.

The claimant local planning authority refused permission for three two-storey dwellings. On the developer’s appeal, an inspector allowed the appeal and granted permission.

The authority challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. The dispute concerned policy 64 of the Richmondshire Local Plan, which restricted development that would materially reduce the supply of, or fail materially to meet extra demand for, publicly accessible recreational open space. The inspector considered that the development appeared not to comply with the policy but was unlikely to cause material harm, and granted permission.

The central issue was whether the inspector had properly applied the policy or had instead treated absence of material harm as sufficient to permit a departure from the development plan.

1. Claim allowed and decision quashed. The inspector’s decision was affected by an error of law and the matter was remitted for reconsideration.
2. Policy 64 and Guidance Note 8 had a close relationship. Extra demand for open space could be met directly through provision by the developer or indirectly through a ring-fenced financial contribution used to purchase, equip or lay out open space within the relevant settlement. Guidance Note 8 was supplementary planning guidance and a material consideration to which substantial weight should be given.
3. The inspector’s reasoning, read as a whole, indicated that she accepted that the development failed to comply with policy 64. Her reference to the absence of “material harm” was materially different from the policy’s question whether the shortfall would be to a “material extent”. The latter focused on the extent of the extra demand or the extent to which the development failed to meet it.
4. The inspector appeared instead to consider whether the policy’s objectives would be harmed despite technical non-compliance. That wider question could potentially be relevant, for example if existing provision already met the additional demand. But it had to be addressed through the statutory approach under section 54A of the Town and Country Planning Act 1990.
5. Section 54A required a development-plan departure to be justified by identified and weighed countervailing material considerations. The inspector had not carried out that lawful exercise. The authority was awarded costs of £7,400. Permission to appeal was refused.

The judgment itself describes the planning authority’s refusal of permission, the developer’s appeal to the Secretary of State, and the inspector’s decision dated 6 January 2003 allowing the appeal. The High Court quashed that decision and remitted the matter for reconsideration.