Swindon Borough Council v First Secretary of State & Anor

In a planning challenge, an inspector must address a substantial argument and explain the conclusion reached on it. Technical guidance that is not directly applicable may still provide a relevant point of reference if it can rationally inform the site-specific judgment. Failure to consider such guidance, or to explain its rejection, may amount to failure to take account of a material consideration and breach of the duty to give adequate and intelligible reasons. Relief may be granted where proper consideration might have affected the result.

Swindon Borough Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing Hanson Quarry Products Limited’s appeal against refusal of planning permission. The permission authorised a temporary road-rail aggregate interchange in Swindon.

The council challenged the decision on conservation-area and listed-building grounds, noise and dust, and land-use policy grounds. The central noise issue was whether the inspector had failed to consider, or give reasons for rejecting, BS4142, which the council relied on as relevant guidance despite the absence of a directly applicable standard.

1. The challenge succeeded on noise. BS4142 and MPG11 were not directly applicable but could inform the site-specific assessment of noise affecting the noise-sensitive National Monuments Record Centre. BS4142 was therefore not obviously irrelevant.
2. The inspector considered MPG11 but made no reference to BS4142. It was uncertain whether she had failed to consider a material consideration or had rejected it without adequate reasons. The reasons did not address a principal controversial issue in proper, adequate and intelligible terms.
3. The deficiency caused substantial prejudice. BS4142’s possible 5dB correction could have produced a more stringent assessment, and proper consideration might have led to a different result.
4. The conservation-area and land-use policy challenges failed. The inspector was entitled to make evaluative judgments after a site inspection and to grant a temporary permission consistently with the relevant policies.
5. The inspector’s decision was quashed and remitted to the Secretary of State for reconsideration. The Secretary of State was ordered to pay 60 per cent of the council’s costs.

not stated in the judgment.