Westgate Partnership v Oxford City Council

A planning decision-maker must identify whether a proposal accords with the development plan and must address the principal important controversial issues material to the decision. Where the decision-maker departs from an inspector’s favourable conclusions, the decision letter should state whether those conclusions are accepted and, if not, give reasons. This is particularly important where the decision requires a balance between substantial planning benefits and conservation objections. A decision-maker cannot avoid addressing material benefits by treating the conservation objection as decisive without first reaching conclusions on the issues that must be weighed. The court may quash the decision where that balancing exercise has not been properly performed, even if the same ultimate outcome might follow reconsideration.

The Westgate Partnership and Oxford City Council brought separate applications under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s refusal of three planning applications for redevelopment at the Westgate Centre, Oxford. The applications had been called in under section 77, and an inspector had recommended permission for the principal development, subject to exclusion of one office block.

The challenges concerned the Secretary of State’s treatment of the development plan, the sequential test and retail issues under PPG6, and design, townscape and conservation matters. The central issue was whether the decision letter adequately explained the conclusions reached on the principal controversial issues and the balancing exercise.

1. Both applications were allowed and the Secretary of State’s decision was quashed. The claimants had established material failures in the decision letter, and the court declined to withhold relief on the basis that the same decision might ultimately be reached.

2. Under section 54A of the Town and Country Planning Act 1990, the decision-maker had to determine whether the proposals accorded with the development plan and whether material considerations justified departing from it. The Secretary of State’s conclusion that insufficient material considerations justified a departure made it clear, to an informed reader, that he considered the proposals not to accord with the development plan. However, he failed to address the inspector’s important conclusion that the scheme accorded with development plan shopping policy. That omission was material because the conclusion, if accepted, constituted a benefit to be weighed against the conservation objection.

3. The Secretary of State was entitled to treat part of the site as edge of centre for the purposes of PPG6. That conclusion did not, however, determine whether the sequential test was satisfied. The inspector had expressly found that it was satisfied, and the Secretary of State failed to say whether he accepted that conclusion or, if not, why.

4. The Secretary of State’s reservations about economic effects on Oxford and nearby centres were unsupported by evidence and contrary to the unchallenged evidence and the inspector’s conclusions. He also failed to reach a meaningful conclusion on the need for the proposed amount and quality of retail floorspace. Retail benefit was a principal important controversial issue, and the Secretary of State had to decide it before determining whether it was outweighed by conservation concerns.

5. The Secretary of State was entitled to regard the scale and design objection as fundamental and was not shown to have misunderstood Local Plan Policy EN24. Nevertheless, he reached a conclusion about harm to vistas from outside or on the edge of Oxford without evidence or explanation. His failure to address favourable inspector conclusions and the weight attributed to relevant objections further demonstrated that the required balancing exercise had not been carried out.

6. The reasoning in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 71 P & CR 309 required conclusions on the principal important controversial issues. MJT Securities Ltd v Secretary of State for the Environment [1998] JPL 139 did not relieve the Secretary of State of that obligation where the issues formed part of the overall balance.

The Secretary of State was ordered to pay the costs of both claimants.

This was a first-instance decision on two applications under section 288 of the Town and Country Planning Act 1990. The judgment records that the applications had been called in and determined by the Secretary of State after a public inquiry, but gives no earlier court decision.