Burbury Investments Ltd v First Secretary of State & Anor

In a planning challenge, a decision-maker must identify and properly interpret the relevant development-plan policies, consider the material considerations, and give reasons sufficient to explain the decision. [1997] 1 WLR 1447 does not impose a universal two-stage method or require every relevant policy to be discussed expressly, provided the substance of the relevant matters has been addressed. A reasons defect justifies relief only where it causes substantial prejudice. In a mixed-use application, an inadequately reasoned conclusion on one element will not justify quashing the decision if the court is satisfied that the other decisive objections made a different outcome unrealistic.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the First Secretary of State’s refusal of planning permission for a substantial mixed-use development at the former Dairy Crest site in Ellesmere. An inspector had recommended permission, but the Secretary of State rejected that recommendation, principally because the factory outlet centre was inconsistent with current retail and transport policy, and because the housing element was premature.

The claimant alleged errors of law, inadequate reasons, and procedural unfairness concerning the development plan, retail impact, linked trips, housing prematurity, transport, and tourism issues. The central questions were whether the decision letter lawfully addressed the development plan and whether its reasoning defects substantially prejudiced the claimant.

1. Claim dismissed. The application to quash the Secretary of State’s decision under section 288 of the Town and Country Planning Act 1990 was refused. Permission to appeal was subsequently refused, and the claimant was ordered to pay the First Secretary of State’s costs, including the permission application.
2. Section 54A of the Town and Country Planning Act 1990 requires the decision-maker to consider and interpret the relevant development-plan provisions, decide whether the proposal accords with the plan, identify the material considerations, and assess their weight. It does not require a universal two-stage procedure or express evaluation of every relevant policy. The decision-maker may address the substance of policies through related planning considerations, provided the statutory priority of the development plan is respected.
3. The Secretary of State lawfully treated the proposal as complying with the development plan but concluded that its allocation was inconsistent with up-to-date national retail policy. It was open to him to regard the factory outlet centre primarily as retail development rather than as a tourist attraction, and to conclude that its scale, catchment, poor public transport, and anticipated car journeys conflicted with PPG6 and PPG13.
4. The Secretary of State should have identified prematurity as an issue and his reasons for differing from the inspector on housing accessibility were inadequate. However, those defects caused no substantial prejudice because prematurity was a decisive objection and there was no realistic possibility that a different view on accessibility would have altered the result.
5. His failure to explain why the food supermarket’s linked trips and retail impact were assessed differently from the 1996 proposal was also defective. Nevertheless, the supermarket was only one element of the scheme. The fundamental objections to the factory outlet centre and the prematurity objection to the housing meant that a different decision was not realistically possible.

First-instance judicial review in the Administrative Court. The claimant’s application for permission to appeal was refused in the addendum to the judgment.