Stewart, R (on the application of) v First Secretary Of State For Environment & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, the court does not rehear the planning evidence. It intervenes where the decision-maker acted without evidence, reached an irrational conclusion, misconstrued the statute, took irrelevant matters into account, or otherwise erred in law.

The identification of a planning unit and the existence of a material change of use are questions of fact and degree. The applicable test is objective. A landowner’s disability or infirmity does not alter the test. Evidence contained in an unsigned proof may be considered at a planning inquiry where it has not been challenged. An unnecessary observation on an issue not argued or decided should be disregarded in later proceedings.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash a planning inspector’s decision and certificate of lawfulness. The inspector had granted a certificate for part of land adjoining Fernhill Cottage but refused it for the remainder, identified as Area 2A.

The claimant alleged errors concerning the planning unit, reliance on an unsigned proof of evidence, the proposed stationing of a mobile home for a carer, and the effect of her disability on the assessment of material change of use. The central issues were whether the inspector had applied the correct legal principles and whether his factual conclusions were legally open to him.

1. Application dismissed. The inspector’s decision and certificate of lawfulness were not shown to be outside the powers of the Town and Country Planning Act 1990 or to involve substantial prejudice from failure to comply with a relevant requirement.
2. Under section 288, the court’s role was supervisory. It did not substitute its assessment of the evidence for that of the inspector. Applying the approach stated in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, intervention was justified for want of evidence, an unreasonable conclusion, statutory misinterpretation, reliance on irrelevant matters, omission of relevant matters, or another error of law.
3. The principles in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 governed identification of the planning unit. The inspector was entitled to conclude that Fernhill Cottage, Area 1 and the black land formed one planning unit, while Area 2A remained a separate planning unit whose lawful use was agricultural. The claimant’s factual criticisms did not establish perversity or legal error.
4. An unsigned proof of evidence was admissible material at a planning inquiry. The inspector was entitled to take it into account, particularly because the relevant passage had not been challenged in cross-examination and was only one part of the evidential picture.
5. The inspector’s observation that a mobile home for a carer would not be incidental to residential use was obiter. The issue had not been properly argued and relevant authority, Whitehead v Secretary of State for the Environment [1992] JPL 561, had not been cited. The observation should be disregarded in future proceedings, and the issue remained at large.
6. Material change of use under section 55 of the Town and Country Planning Act 1990 is assessed objectively. The test is unaffected by the health or infirmity of the landowner. The claimant’s use of Area 2A, although continuous in the sense that it occurred throughout the relevant period, was insufficient in nature and intensity to establish the necessary material change of use.
7. Costs were awarded to the Secretary of State. Permission to appeal was refused.

The claimant challenged the planning inspector’s decision dated 6 February 2004 by an application under section 288 of the Town and Country Planning Act 1990. The High Court dismissed the application, awarded costs to the Secretary of State, and refused permission to appeal.