Gloucester City Council v First Secretary of State

An inspector may give limited weight to an emerging development plan and assess the proposal by reference to the policy’s objectives where the plan has not reached an advanced stage. Adoption of an emerging draft plan for the council’s development control purposes does not give it enhanced status or require greater weight. A failure to address the precise wording of such a policy will not justify relief where the inspector understood the policy and the error could not have affected the outcome. Reasons need not expressly mention matters that were effectively common ground and non-controversial.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal under section 78 and granting planning permission for the change of use of retail premises to an amusement centre.

The challenge concerned the inspector’s treatment of policy S8 in an emerging local plan. The claimant argued that the inspector had failed to require the developer positively to demonstrate that the proposal would sustain and enhance the vitality and viability of the primary shopping area, and had failed to take account of the draft plan’s adoption for development control purposes.

1. Claim dismissed. The inspector had made no material error in allowing the planning appeal.
2. Policy S8 required the developer to demonstrate that the proposal would sustain and enhance the vitality and viability of the primary shopping area. In the context of a planning application, that requirement was properly understood by reference to the balance of probabilities. Express reference to an onus of proof added nothing substantive.
3. The inspector was entitled to give only limited weight to policy S8 because it formed part of an emerging plan that had not reached an advanced stage. Having assigned it limited weight, he was entitled to consider whether the proposal accorded with the policy’s objectives, rather than address every precise term of the policy. His approach properly took the emerging policy into account as a material consideration.
4. In any event, the inspector’s findings under structure plan policy TC1, adopted local plan policy S4 and the relevant national guidance amounted to positive findings that the proposal would sustain and enhance vitality and viability. Any failure to apply the precise wording of policy S8 could not have affected the decision and would not have justified relief.
5. Adoption of the draft plan by the council for development control purposes did not give it enhanced status. It remained an emerging draft plan whose weight fell to be assessed in accordance with paragraph 48 of PPG1. It was not equivalent to supplementary planning guidance.
6. The inspector was not required to mention expressly a matter that was effectively common ground and had not been advanced as a controversial issue. In any event, the evidence did not establish that he had failed to consider the draft plan’s development-control status. Any error on this issue would likewise have been immaterial.
7. On costs, the Secretary of State was awarded £7,441. The developer was awarded its costs of preparing and filing evidence, subject to detailed assessment if not agreed, but not its costs of representation at the hearing because there was no separate issue or interest requiring separate representation.