Thompson, R (on the application of) v First Secretary of State & Anor

On an application challenging a planning decision, the court may intervene for an error of law, failure to comply with a material statutory requirement causing prejudice, or procedural unfairness amounting to a breach of natural justice. It cannot substitute its view for an inspector’s on disputed facts or planning judgment. A listed building’s potential active or economically viable use may be assessed as part of the wider residential planning unit, including ancillary uses with another dwelling. Planning inspectors may rely on their expertise and experience when evaluating potential use and the weight of evidence. Their decisions need not address every submission, provided they show that material issues were considered in the correct legal framework. Informal hearings impose a stronger inquisitorial responsibility on inspectors, but criticism of procedure must demonstrate actual unfairness.

The claimant challenged the dismissal of planning and listed building appeals concerning a proposed extension linking two Grade II listed gatehouses. The first decision was quashed after Collins J found that the claimant had not been given a fair opportunity to address an inference concerning the use of one building. The appeals were reheard by a different inspector, who again dismissed them. The claimant alleged errors of law, procedural unfairness, factual mistakes and misinterpretation of the inspector’s description of the proposed works. The central issues were whether the inspector had lawfully assessed the building’s potential use and whether the rehearing had been conducted fairly.

1. Application dismissed. The inspector’s decision was within the statutory powers and no prejudicial failure to comply with applicable requirements was established.
2. The court could not interfere with disputed factual assessments or planning judgment. Applying the principles illustrated by Ashbridge Investments [1965] 1 WLR 1320, intervention required a failure to consider a relevant matter, consideration of an irrelevant matter, irrationality, or an error of law.
3. The requirement in PPG 15 to consider active and economically viable use did not require an independent income-producing use. The two lodges could properly be treated as one residential planning unit. Potential ancillary uses, including storage, a studio, workshop or office, could therefore be relevant. The inspector was entitled to rely on professional expertise and to give his assessment greater weight than the claimant’s present intentions or the history of an unsuccessful craft-shop use.
4. The statutory policy requiring special regard to the preservation of listed buildings did not prevent alteration, but the inspector was entitled to conclude that the proposed link would harm the buildings’ architectural and historic interest and that repair costs did not establish that the proposal was the only means of securing their future.
5. The rehearing was fair when considered in the round. The second inspector’s access to the earlier papers, awareness of Collins J’s decision, similar treatment of the issues, informal procedure and failure to discuss possible conditions did not establish a closed mind or denial of a proper opportunity to present the case. Informal hearings place a greater inquisitorial responsibility on inspectors, but the evidence here showed an independent decision.
6. The reference to raising the gate walls to eaves level was sufficiently clear when read by an informed reader in the context of the plans and the proposed extension. Costs of £3,660 were ordered against the claimant.

The claimant’s earlier challenge to the first inspector’s decision succeeded before Collins J, who quashed that decision because the claimant had not been given a fair opportunity to address an inference about the building’s use. The appeals were then reheard by a different inspector, whose decision was challenged in this claim. The present court dismissed the claim.