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

In a planning challenge, an Inspector must take account of material planning history and give intelligible reasons for the weight assigned to it. Undetermined applications for approval of reserved matters remain subject to the local planning authority’s continuing duty to determine them. An outline permission is not time-barred merely because reserved matters remain outstanding. Where relevant evidence shows a real possibility that the planning decision might differ, the court may quash the decision rather than decline relief on the basis that the result would inevitably have been the same.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s dismissal of his appeal against refusal of planning permission for one dwelling. The site had outline permissions and several undetermined applications for approval of reserved matters dating from 1985. The Inspector treated the applications as effectively deemed refusals and concluded that the planning history did not outweigh current policy objections. The issue was whether the Inspector had properly addressed the evidence about the status and likely determination of the reserved matters applications.

1. Application granted. The Inspector’s decision was quashed.

2. The Inspector was entitled to recognise that no permission could presently be implemented because the reserved matters had not been determined. However, he failed either to take proper account of the evidence given by the Council’s planning officer or to give intelligible reasons for concluding that the Council’s position was unlikely to change.

3. The evidence indicated that the applications had not been withdrawn, abandoned or determined. In particular, application 1225 remained capable of being referred back to the planning committee, and there was said to be no outstanding objection to the submitted details.

4. The Council retained a continuing duty to determine the reserved matters applications. Applying Bovis Homes (Scotland) Limited v Inverclyde District Council [1983] JPL 171, the outline permission was not time-barred in the relevant sense. The failure to determine the applications had also deprived the claimant of the opportunity to appeal a decision on them.

5. The planning history was therefore a material consideration. In view of the Council’s concession that permission should be granted if there were an extant outline permission, there was a real possibility of a different decision if the evidence were properly considered. It was consequently inappropriate to refuse relief on the discretionary basis that the Inspector would inevitably have reached the same result. The First Secretary of State was ordered to pay the claimant’s costs of £8,314.21.

The judgment describes a planning application refused by Stratford-upon-Avon District Council and an appeal dismissed by the First Secretary of State’s Inspector on 23 March 2005. The Administrative Court quashed the Inspector’s decision under section 288 of the Town and Country Planning Act 1990.