Lough & Ors v First Secretary of State

In a planning challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality rather than rehearing planning merits. An appeal under section 78 is considered afresh by the inspector, who may consider reasons not relied upon by the local planning authority. In human-rights cases, the ordinary planning balancing exercise will usually address proportionality under Article 8 and Article 1 of the First Protocol. An inspector need not use the word “proportionality” if the reasoning shows that relevant competing interests were actually weighed. Express reference is nevertheless sensible where the issue is raised. A slight interference will ordinarily be proportionate. Loss of a view and diminution in property value generally add little where they arise from loss of amenity.

The claimants, representatives of the Bankside Residents for Appropriate Development, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing planning permission for a 20-storey mixed-use building at 44 Hopton Street, Bankside. Southwark had refused permission, but the inspector allowed the developers’ appeal under section 78 and imposed conditions, including obligations concerning affordable housing, environmental improvements and television reception.

The claim alleged errors of law concerning the reasons for Southwark’s refusal, the scope of the inquiry, development viability, planning obligations, conditions, and the effect of the development on rights under Article 8 and Article 1 of the First Protocol. The central issue was whether the inspector’s reasoning disclosed an error of law, particularly by failing to refer expressly to proportionality.

1. Claim dismissed. The court could not substitute its own planning judgment for that of the inspector. The decision letter had to be read fairly and in context, rather than subjected to detailed textual analysis as though it were a statute.
2. Section 79(1) of the Town and Country Planning Act 1990 enabled the Secretary of State, on a section 78 appeal, to deal with the application as if it had been made to him in the first instance. The inspector could therefore consider aesthetic control under Policy E.2.3 even though the local authority’s formal reasons were confused and did not clearly identify that policy.
3. The inspector was entitled to reject evidence directed only to the individual developer’s financial position. The development’s viability could be relevant only if the development itself created a planning deficit. The evidence showed that the development was viable, and the possibility of a later purchaser completing it was entitled to little weight.
4. Following the approach in R (Malster) v Ipswich Borough Council [2002] P.L.C.R. 251 and Buckland v Secretary of State for the Environment [2001] EWHC Admin 524, ordinary planning decision-making will usually involve the balancing exercise required by Article 8 and Article 1 of the First Protocol. Specific reference to proportionality is desirable, but not essential if the inspector has considered all relevant factors and the result would have been the same.
5. The inspector had weighed loss of daylight and sunlight, privacy and other effects against the development’s planning benefits. It was inconceivable that an express reference to proportionality would have altered the result. Loss of a view was not a material planning objection, and diminution in value added nothing distinct to the amenity impacts: see London Borough of Harrow v Qazi [2003] 3 W.L.R. 792.
6. The remaining complaints concerning planning obligations, television reception and conditions disclosed no error of law. The claim was dismissed, with one set of costs payable to the Secretary of State. Permission to appeal was granted reluctantly on the human-rights issue because of its wider importance, not because the judge considered that the appeal had reasonable prospects of success.

The claim was a first-instance challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision allowing a planning appeal under section 78. The claim was dismissed. Permission to appeal was granted on the human-rights issue.