Lawrence Sheriff School, Trustees of & Anor v First Secretary of State

An inspector generally need not disclose concerns where the issue concerns planning judgment, policy construction or the application of policy to facts. The position may differ where an undisclosed factual issue could have been answered by evidence. A policy permitting “limited development” may regulate both the amount needed to secure improved facilities and the scale of the development. Planning guidance on affordable housing must be read together with the relevant circular. A reasonable agreement for an off-site contribution may satisfy that guidance. Where a decision-maker has made a legal error, the challenge succeeds only if the decision might have been different without the error. The burden of establishing that the outcome would necessarily have been the same rests on the decision-maker.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s refusal of planning permission for 77 dwellings on school playing fields. The application had been called in under section 77 of the Act after the local planning authority had agreed the scheme.

The inspector identified conflicts with local policies concerning school playing fields, open-space accessibility, highway safety and noise. She also considered that the proposed financial contribution towards off-site affordable housing failed to satisfy the presumption in PPG3 that affordable housing should be provided on the development site. The central issues were whether the inspector had acted unfairly, whether her policy conclusions were lawful, and whether the affordable-housing error was material.

1. Fairness. The inspector was not generally required to warn the parties that she might construe a planning policy differently from the interpretation assumed in their evidence. The duty to raise concerns is particularly important for an evidential issue which the parties reasonably regarded as uncontested. It is less readily engaged where the issue concerns policy construction or planning judgment. The reasoning was consistent with Fairmount Investments v Secretary of State for the Environment [1976] 1 WLR 1255 and the observations in Warnes & Overy Ltd v Secretary of State for the Environment (unreported).
2. Local policies. “Limited development” in policy R/RL3(5) concerned the scale of development as well as the funding required. The inspector was entitled to find that the proposal was excessive in scale. The failure to satisfy the accessibility requirements in policy R/RL3(6) was also a lawful basis for objection. Applying R v Derbyshire County Council, ex parte Woods (1997) JPL 958, the court would not interfere with a policy meaning reasonably capable of bearing the decision-maker’s construction.
3. The inspector was entitled to rely on unresolved highway-safety concerns and the anticipated disturbance to neighbouring residents from traffic and sports use.
4. Affordable housing. PPG3 and Circular 6/98 were complementary. A reasonable agreement for an off-site financial contribution could satisfy the guidance; the PPG3 presumption for on-site provision did not prevail in those circumstances. The inspector and Secretary of State therefore erred in law.
5. Materiality and outcome. The Secretary of State had to establish that the decision would necessarily have been the same without the error. The wording of his decision demonstrated that the affordable-housing error could not have affected the result, given the other substantial objections. The claim was dismissed. The claimants were ordered to pay costs assessed at £12,124.

The Secretary of State called in the applications under section 77 of the Town and Country Planning Act 1990, accepted the inspector’s recommendation and refused planning permission on 20 May 2005. The claim under section 288 of the Act was dismissed by the High Court (Administrative Court), with costs.