Millgate Homes Ltd., R (on the application of) v First Secretary of State

A challenge under section 288 of the Town and County Planning Act 1990 concerns legal error, not disagreement with the planning merits. An Inspector must give adequate reasons, but need not spell out matters that are obvious from the decision read as a whole. Backland development is not unacceptable in principle. Its effect must be assessed in the particular surroundings, including the character and appearance of the area, the relationship between frontage plots and rear gardens, and the proposed access. Where rival submissions on precedent are expressed generally, the Inspector may respond in general terms. Planning conclusions open to the Inspector are not susceptible to challenge merely because another view is possible.

The claimant sought under section 288 of the Town and County Planning Act 1990 to quash an Inspector’s decision dismissing an appeal against refusal of outline planning permission for two detached houses in the rear gardens of two residential properties. The Inspector considered that the proposal, including a lengthy access way, would harm the distinctive character and appearance of the surrounding area and might establish a precedent for similar backland development.

The claimant challenged the decision on four grounds: inadequate reasoning concerning the access way and precedent; ambiguity in the treatment of frontage plots; and failure to distinguish layout from reserved design matters.

1. The application was refused. The Inspector’s decision was not unlawful under section 288 of the Town and County Planning Act 1990.
2. The Inspector adequately explained why the proposed access way was harmful. Read as a whole, the decision showed that the concern was not highway safety or traffic generation, but the effect of a lengthy access serving three dwellings and penetrating the rear garden area on the distinctive and cohesive character of the locality.
3. The Inspector was entitled to address precedent in general terms. In the present case, precedent was only one concern, and the parties’ submissions were themselves generalised. The Inspector was therefore entitled to accept the council’s case without identifying every potentially comparable property or giving a more detailed explanation. Rumsey v Secretary of State for the Environment, Transport and The Regions and Waverley Borough Council [2001] 81 P&CR 465 was distinguishable because the decision there depended entirely on precedent and involved different submissions.
4. The Inspector did not treat backland development as harmful per se. She applied the relevant planning policies to the particular proposal and its surroundings. She was entitled to conclude that introducing two dwellings and a mini estate road into extensive rear gardens would alter the established frontage-plot character for the worse.
5. The reference to the proposed dwellings being at variance with the surrounding estate did not concern design. Design had not been considered, and no design material was before the Inspector. The conclusion related to the visibility of dwellings in a rear garden area and their effect on the character of the estate.
6. The four grounds amounted to disagreement with planning judgment. The claimant was ordered to pay the defendant’s costs, summarily assessed at £3,380.

The Inspector dismissed the claimant’s planning appeal in a decision letter dated 29 April 2003. The claimant’s section 288 application to the High Court was refused.