Taussig, R (on the application of) v First Secretary of State & Ors

An inspector determining a planning appeal must address the substance of each relevant development-plan policy. If the inspector grants permission contrary to a policy requiring refusal unless exceptional circumstances exist, the decision must recognise that it departs from the policy and give clear reasons for doing so. A conclusion that the development would not undermine the policy’s purpose may amount to a material consideration, but it does not replace the required assessment unless the inspector treats the decision as a departure. Material considerations brought to the inspector’s attention must be considered. An inspector must seek further information where unable to reach a fair decision, but need not investigate matters which the parties have not treated as material.

The claimant, the owner of a flat above the proposed development, sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal against refusal of planning permission. The permission concerned the erection of a conservatory at the rear of a ground-floor flat in a converted Victorian house.

The claimant argued that the inspector had failed to apply Policy HSG 2.9, which normally required refusal of extensions to converted properties unless exceptional circumstances were demonstrated, and had failed to consider supplementary planning guidance. The issues were whether the inspector had addressed the policy’s exceptional-circumstances requirement and whether the supplementary guidance had to be obtained and considered.

1. Decision quashed and remitted. The inspector had recited Policy HSG 2.9 but had not asked whether exceptional circumstances existed or had been demonstrated. Instead, she asked whether allowing the conservatory would undermine the purpose of the policy.
2. Under section 54A of the Town and Country Planning Act 1990, a determination must accord with the development plan unless material considerations indicate otherwise. A conclusion that the policy’s purpose would not be undermined might justify treating the case as a departure from the policy, but the inspector had not put her decision on that basis. She had therefore failed to confront the policy’s operative requirement.
3. Following Horsham District Council v Secretary of State for the Environment [1992] 1 PLR 81, an inspector may depart from a development-plan policy, but must say that she is doing so and make her reasons clear. The inspector’s reasoning did not satisfy that requirement.
4. The supplementary planning guidance was a material consideration because the development plan expressly referred to it. Its status was apparent, although its contents had not been supplied to the inspector. Applying the approach in John Taylor v Secretary of State for Wales [1985] J.P.L. 792, an inspector must consider a material matter brought to her attention or discovered on inspection, and must ask for information if unable to reach a fair decision. She need not seek out a matter which the parties have not treated as material merely because it might prove relevant.
5. The claimant was awarded the whole of her costs, assessed at £9,966.58. Permission to appeal was refused, although time for any application was extended to 14 days after the transcript became available.