Donovan, R (on the application of) v North Warwickshire District Council

A challenge under Town and Country Planning Act 1990 section 288 succeeds only on the statutory grounds, which broadly correspond to judicial review grounds. The court examines whether the decision-maker acted within power, complied with relevant requirements, reached a rational conclusion and followed a lawful methodology.

In an application to remove an agricultural occupancy condition, financial hardship and personal circumstances do not by themselves justify removal. The applicant must provide the planning material required by the applicable policy, including evidence addressing the continuing need for the dwelling, the viability of the relevant business and, where required, marketing at a discounted price. Convention rights are not engaged without a relevant interference, and planning controls ordinarily constitute controls of use rather than deprivations of possessions.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision dated 7 July 2003 dismissing his appeal against the refusal of planning permission.

The application concerned the removal of an occupancy condition attached to a dwelling at Corley Nursery. The condition initially restricted occupation to the claimant and his family and thereafter to persons employed in operating and managing the approved nursery use.

The claimant relied on financial and health difficulties, changes to the surrounding area, alleged contractual or estoppel consequences arising from an erroneous planning document, and Articles 3, 5, 6 and 14 of the Convention and Article 1 of Protocol 1. The central issues were whether the Inspector’s reasoning was legally flawed or irrational and whether the decision infringed the claimant’s Convention rights.

1. The claim was dismissed. The claimant was ordered to pay the First Secretary of State’s costs, summarily assessed at £5,020.
2. The court held that the permissible grounds under section 288 of the Town and Country Planning Act 1990 were broadly analogous to judicial review. The court could consider whether the Inspector acted outside the statutory powers, failed to comply with relevant requirements, reached an unreasonable decision or adopted a materially flawed methodology.
3. The Inspector was entitled to apply local policy HSG9 and the relevant Green Belt policies. The policy required an adequate planning justification for removing the occupancy link, including material addressing whether the dwelling remained needed for agricultural purposes, whether the business had long-term viability and whether the property had been marketed at a reduced price for the required period.
4. The claimant had not supplied adequate evidence on those critical matters. His financial and health difficulties, although deserving of sympathy, did not constitute planning reasons for removing the condition. The Inspector gave clear and valid reasons, and his decision and decision-making process were unimpeachable on the material before him.
5. The erroneous document apparently granting permission did not assist the claimant in these proceedings. The issue had been presented to the Inspector as an unfortunate mistake, not as a contractual or estoppel claim. The Inspector was entitled to treat it as outside the planning appeal and as not affecting the decision.
6. Articles 3 and 5 were not engaged. The statutory appeal procedure combined with High Court supervision provided an independent determination of civil rights for Article 6 purposes, following R (Alconbury Development Ltd and Others) v Secretary of State for the Environment, Transport and the Regions. Article 14 was not engaged by the claimant’s mortgage difficulties. The occupancy condition was a planning control of use, not a deprivation of possessions, and there was no arguable breach of Article 1 of Protocol 1.

This was a first-instance challenge in the Administrative Court to an Inspector’s decision dated 7 July 2003 dismissing the claimant’s planning appeal under section 78 of the Town and Country Planning Act 1990. The claim was dismissed.