Oxford City Council v The First Secretary of State & Anor

In a challenge under Town and Country Planning Act 1990, the court may not substitute its own interpretation of planning policy for that of the decision-maker. It must determine what meanings the policy wording is capable of bearing as a matter of law. An inspector errs in law where the adopted interpretation is illogical, irrational or incapable of being borne by the policy in context. An inspector may depart from an earlier appeal decision, but must have regard to consistency and give clear reasons for doing so. Reasons must address the principal controversial issues, identify the major steps in the reasoning and provide a rational basis for departure. Failure to do so, causing substantial prejudice, justifies quashing the decision.

Oxford City Council challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing J A Pye (Oxford) Limited’s appeal against the Council’s failure to determine a planning application for 38 dwellings.

The Council argued that the inspector had applied the sequential test in PPG 3 irrationally, departed inadequately from an earlier appeal decision, failed to determine whether shared-ownership housing was affordable under Circular 6/98, and gave inadequate reasons contrary to Regulation 19 of the applicable inquiry rules. The Secretary of State submitted to judgment.

1. The claim succeeded. The 2004 appeal decision was quashed. No formal remission was required because the Secretary of State’s jurisdiction to redetermine revived automatically.

2. The court adopted the approach in R v Derbyshire County Council ex parte Woods [1997] JPL 958 and R v Hambleton District Council ex parte Somerfield [1999] PLCR 236. The meaning of planning policy is primarily for the decision-maker, but the court determines what the words are capable of meaning as a matter of law. Where wording is capable of more than one meaning, an inspector does not err merely by selecting one legally available meaning. The court intervenes where the interpretation is perverse or otherwise bad in law.

3. Under North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, an inspector may depart from an earlier appeal decision. However, the inspector must have regard to the importance of consistent decisions and give reasons for the departure.

4. The inspector’s reasoning on paragraph 30 of PPG 3 was illogical and irrational. The conclusion that development did not conflict with the search sequence merely because the site fitted none of the priority classifications was not a meaning which the policy could bear in context.

5. The inspector also failed to resolve whether the shared-ownership element constituted affordable housing. In addition, the decision did not clearly address the principal controversial issues, set out the major steps in the reasoning or provide a rational basis for departing from the earlier decision. The Council was substantially prejudiced by those failures.

Not stated in the judgment.