First Secretary of State & Anor v Hammersmatch Properties Ltd

On an application under Town and Country Planning Act 1990, the court’s task is to review legality and rationality, not to substitute its own planning judgment. The threshold for irrationality is high: intervention is justified only where the decision falls outside the bounds of any decision reasonably open to the appointed decision-maker.

Retention of land designated for employment use is a legitimate material planning consideration. An inspector may balance that policy against demand for health and fitness facilities, give each consideration the weight considered appropriate, and treat the possible availability of more suitable town-centre sites as relevant. The demand for leisure facilities is not automatically overriding. Planning merits remain for the planning authority or inspector, subject to the statutory duty to follow the development plan unless material considerations indicate otherwise.

Hammersmatch Properties Ltd appealed against Welwyn Hatfield District Council’s failure to determine an application for permission to change part of an employment building into a health and fitness club. An inspector dismissed the appeal and refused permission, relying on employment-land policies and the sequential preference for town-centre leisure sites.

On the company’s application under section 288 of the Town and Country Planning Act 1990, Collins J quashed the Secretary of State’s decision and remitted the matter for reconsideration. He considered that the inspector had erred in assessing need, alternative sites and the retention of employment land. The Secretary of State appealed. The central issue was whether the inspector’s conclusions were irrational or otherwise unlawful.

1. Appeal allowed. The Secretary of State’s decision was not unlawful, and the judge’s order quashing it was set aside.
2. Under section 288 of the Town and Country Planning Act 1990, the same high threshold of irrationality applies as on judicial review. Intervention is warranted only where the challenged decision falls outside the bounds of any decision open to a reasonable decision-maker. The court must not substitute its own view of the planning merits.
3. Land designated in the development plan for employment use may properly be retained for future employment requirements. The weight given to that consideration is for the inspector. The inspector was entitled to balance it against the demand for health and fitness facilities and was not required to treat that demand as overriding.
4. The identified Chinacorp site, together with the possibility of other town-centre sites becoming available, was a legitimate planning consideration. It was open to the inspector to regard such sites as preferable under the sequential approach in PPG6, even though their availability and timing were open to argument. Lady Justice Smith considered that any error concerning some alternative sites would not have been material because Chinacorp alone was a reasonable alternative.
5. Section 54A required the inspector to determine the matter in accordance with the development plan unless material considerations indicated otherwise. The inspector was entitled to conclude that the employment-land policies were not outweighed by the immediate benefits of the proposed leisure use.
6. Collins J had entered the arena of planning merits and thereby exceeded the proper supervisory role. The decision letter, read as a whole, disclosed a rational planning judgment and could not be impugned.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1360 — appeal allowed; the Secretary of State’s decision was upheld and the order quashing it was set aside.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Collins J, 24 February 2005 — the Secretary of State’s decision was quashed and remitted for reconsideration.