Shinh & Anor v First Secretary of State

In a planning challenge, an inspector must address the potential for planning conditions or obligations to overcome identified harm. Reasons need be intelligible and adequate on the principal controversial issues, but need not address every argument or material consideration. A reasons challenge succeeds only where inadequate reasoning causes substantial prejudice. An inspector may assess noise and disturbance using professional experience, site observations, written representations and common sense. Direct technical measurement is not essential. Where proposed controls would be difficult to administer or enforce, the inspector may conclude that they would not provide a reasonable solution.

The claimants operated a day nursery from their house under planning permission limiting the number of children. They challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of their appeal against refusal of permission to extend the nursery to the first floor and increase capacity to 35 children.

The inspector accepted that highway and parking concerns could be addressed, but found that outside play by the increased number of children would materially harm neighbouring living conditions through noise and disturbance. The claimants alleged failures to consider conditions, procedural unfairness concerning childcare arrangements, inadequate reasons and irrationality arising from the absence of quantified noise evidence.

1. Claim dismissed. The inspector had considered whether conditions or a planning obligation could control outside play and prevent material harm to neighbouring living conditions. His conclusion that an overall limitation on numbers was the only reasonable mechanism necessarily included consideration of conditions.
2. The inspector had regard to the policy guidance concerning planning conditions. The proposed regime of short play periods and small groups would be difficult to administer and enforce for up to 35 children. It was therefore open to him to conclude that the harm could not reasonably be overcome by conditions or another mechanism.
3. The reasons were adequate and intelligible. Applying the principles summarised by Lord Brown in South Buckinghamshire District Council v Porter, the decision letter enabled the parties to understand why permission was refused and how the principal issue had been resolved. A reasons challenge requires substantial prejudice, which was absent here.
4. The inspector’s references to stimulating play and outdoor play did not amount to findings that the nursery failed to meet childcare standards. They were common-sense considerations relevant to whether the proposed play-management regime could work in practice. No procedural unfairness arose because the issue was the practical effect of the proposed restrictions, not a new question about childcare standards.
5. Quantified noise evidence was unnecessary. The inspector could rely on the written representations, neighbours’ evidence, the site visit, professional judgment and common sense. The conclusion that increased numbers were likely to increase noise and disturbance was rational and sufficiently supported.
6. The claimants were ordered to pay the Secretary of State’s costs, summarily assessed at £4,020.

The claim challenged an inspector’s decision dated 18 August 2004 dismissing the claimants’ planning appeal under section 78 of the Town and Country Planning Act 1990. The Administrative Court dismissed the section 288 challenge.