Smith, R (on the application of) v First Secretary of State

A challenge to a planning decision under section 288 requires an error of law. Mere disagreement with an inspector’s planning judgment on matters such as character, appearance, remoteness, local services or flood risk is insufficient. A dwelling demolished many years earlier may properly be treated as a new building rather than a rebuilding project. The inspector may apply policies governing new development accordingly. A comparison with redevelopment of a site where a building remains is not necessarily a relevant like-for-like comparison. Where a detailed flood risk assessment is required to address safety and increased flood risk, a general search report does not satisfy that requirement.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision dated 12 April 2005. The Inspector had dismissed the claimant’s appeal against the refusal by King’s Lynn and West Norfolk Borough Council of planning permission for a dwelling at Creemore Farm, Norfolk.

The claimant argued that the proposal was a replacement dwelling on previously developed garden or brownfield land, that the site was not remote, that comparable development had been permitted, and that flood-risk information had been provided. The central issue was whether the Inspector had erred in law, rather than whether the planning judgment was correct on its merits.

1. Application dismissed. The court formally dismissed the claim and ordered the claimant to pay the First Secretary of State’s costs in the sum of £4,122.
2. A statutory planning challenge under section 288 of the Town and Country Planning Act 1990 is concerned with legal error. It does not provide an opportunity to re-argue the planning merits or substitute the court’s view for that of the Inspector.
3. The previous farmhouse had been demolished many years before. The Inspector was entitled to treat the proposal as the erection of a new building and to apply policies relevant to new buildings, including PPG3 and Structure Plan Policy H8. The description of the land as garden land or a previously developed site did not alter that conclusion.
4. The Inspector’s conclusions that the building would be highly and harmfully prominent in open countryside and would seriously harm its character and appearance were matters of planning judgment. The court found no basis for treating those conclusions, or the assessment of limited local services, as legally unreasonable.
5. The comparison with the Pump House did not establish unequal treatment. That site still contained a building and involved redevelopment, so it was materially different from constructing a new building on a site where the earlier building had disappeared decades earlier.
6. A general environmental search referring to an indicative coastal flood plain was not a detailed flood risk assessment. The Inspector was entitled to require evidence addressing whether the house could be made safe from a one-in-200-year flood and whether nearby cottages would face increased flooding risk. Other developments did not assist without evidence of their relevant circumstances.

The Inspector dismissed the claimant’s planning appeal on 12 April 2005 after the local planning authority refused permission. The Administrative Court dismissed the subsequent statutory challenge.