Burgess, R (on the application of) v Guildford Borough Council

In a planning challenge under section 288 of the Town and Country Planning Act 1990, an error by an inspector does not justify quashing a decision where the error could not have affected the outcome. A policy must be read in context and by reference to the substance of the inspector’s reasoning, rather than by isolating an imperfect paraphrase. An inspector may describe a proposal in terms that reflect its objective characteristics, and that description is challengeable only on irrationality grounds. Site-visit assessments and evaluative planning judgments likewise attract a substantial margin of judgment.

The claimant challenged an inspector’s dismissal of his planning appeal concerning alterations to a detached garage and associated roof, staircase and balcony at his home. The site was within the Green Belt, an Area of Outstanding Natural Beauty, an Area of Great Landscape Value and a conservation area.

The challenge alleged misinterpretation of local-plan Policies 99RE2, 99H9 and 12RE, procedural unfairness arising from the omission of supporting policy text, an impermissible change in the description of the proposal, and factual errors in the inspector’s site-visit assessments.

1. Claim dismissed. The inspector’s decision was not quashed. The proposal was found to cause substantial harm to Green Belt openness and to the character and appearance of the protected landscape. Those findings independently supported dismissal of the planning appeal.
2. The omission of paragraph 5.41 from the material supplied to the inspector might have led to an error in treating Policy 99H9 as incapable in principle of applying to an extension of an existing outbuilding. It was at least reasonably open to the inspector to treat such an extension as potentially within that policy, subject to its criteria. However, the proposal necessarily failed those criteria because of its harmful effects and disproportionate addition. The error was therefore immaterial and caused no procedural unfairness. Relief could be withheld where an error could not have affected the result, applying the test in Simplex Holdings v Secretary of State for the Environment [1988] 3PLR 25.
3. The inspector had not misread Policy 12RE. The decision letter, read as a whole, showed that she understood and applied the policy’s substance. The court applied the contextual approach explained in South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80.
4. The inspector was entitled to describe the access structure as a balcony and to consider its possible use by persons sitting there. Such a description was a matter of judgment and was not irrational. It was also a judgment that could be made without returning the matter to the parties for further comment.
5. The remaining complaints concerned evaluative judgments made after the site visit. The inspector’s findings about visibility, overlooking and harm to Heathcote fell within the range of reasonable judgment and disclosed no material contradiction.
6. The claimant was ordered to pay the Secretary of State’s costs, payable within three months.

The claim challenged an inspector’s decision dated 27 January 2003 dismissing the claimant’s planning appeal against Guildford Borough Council’s refusal of planning permission. The Administrative Court dismissed the statutory challenge under section 288 of the Town and Country Planning Act 1990.