Austin v First Secretary of State

Planning inspectors must assess the weight due to an emerging local plan by reference to its procedural stage and the nature of objections to the relevant policy. A plan at inquiry stage may not warrant significant weight merely because it is relatively advanced, particularly where the policy is subject to reasoned objections and its final wording remains uncertain.

An inspector must also apply an emerging policy according to its actual terms. A policy permitting residential conversion where the building or its location is unsuitable for employment use cannot be converted into an absolute requirement to market the property for a substantial period. Doing so is an error of law.

The claimant challenged the decision of a planning inspector dismissing his appeal against Penwith District Council’s refusal of permission to convert three rural barns into two mixed residential and workshop units and one dwelling with a workshop.

A previous appeal had been dismissed after the inspector obtained evidence without putting it to the parties. The present proceedings concerned a reconsideration by a different inspector, who relied substantially on Policy H-11 in an emerging local plan. The central issues were the weight properly attributable to that policy and whether it required substantial marketing for employment use despite the policy’s alternative relating to buildings or locations unsuitable for such use.

1. Appeal allowed. The inspector’s decision letter was quashed. The First Secretary of State was ordered to pay the claimant’s costs of £5,770.57.
2. The weight given to an emerging policy depends on the stage reached in plan preparation and increases as successive stages are completed. Relevant considerations include whether the policy has been deposited, whether objections have been made, the nature of those objections, and whether there is positive support. Although Policy H-11 was broadly consistent with Structure Plan Policy ENV11 and PPG7, it was subject to reasoned objections and its eventual degree of rigidity was uncertain. The inquiry was still in progress when the inspector decided the appeal. The inspector therefore erred in treating the plan’s relatively advanced stage as sufficient reason to attach significant weight to H-11.
3. The error was material because the inspector relied extensively on the emerging policy and its rigid approach in refusing permission. The court recognised that the weight given to planning considerations is ordinarily for the inspector, but intervention was justified because the stated basis for the weight was legally erroneous.
4. Policy H-11 did not require the claimant in every case to prove that there was no demand for business re-use through substantial marketing over a significant period. Its explanatory note allowed evidence that the building or its location was unsuitable for employment use to replace proof of marketing. The inspector had recognised that possibility but then treated the absence of substantial marketing as an independent reason for refusal. That conclusion had no proper basis in the policy.
5. The inspector’s treatment of the possible tourism use did not cure the errors. The inspector could require the claimant to address whether that use was viable, but the decision could not rest on a misreading of H-11.
6. The comparison with the St Erth decision did not disclose an error. The inspector was entitled to regard the circumstances as materially different, including the division of floorspace, the contribution to employment, and the positive re-use scheme for traditional buildings. The St Erth decision expressly stated that each case fell to be considered on its own merits.

• Penwith District Council: planning permission refused on 5 September 2000.
• Planning inspector: an appeal dealt with by written representations was dismissed on 26 March 2001. The judgment records that the inspector had obtained evidence without putting it to the parties.
• Planning inspector on reconsideration: the claimant’s appeal was dismissed by decision dated 6 June 2002.
• High Court (Administrative Court): appeal allowed; the inspector’s decision letter was quashed.