Bayfordbury Estates Ltd v First Secretary of State & Anor

A planning inspector’s decision must explain, in intelligible terms, how the principal controversial issues were resolved. This includes explaining the interpretation given to development-plan policies and identifying the effect of material criticisms of important evidence. A court will not substitute its own planning judgment, but inadequate reasoning may cause substantial prejudice where the reader cannot understand the decision or assess whether a legal error has occurred. An inspector may take account of prematurity only consistently with the applicable planning guidance. However, an error which is additional to, and does not contribute to, an independently reached conclusion will not justify quashing the decision. Material points raised in response to late evidence should not be relied on without giving the affected party a fair opportunity to address them.

The claimant owned part of the former Victoria Maltings at Broadmeads, Ware, which was designated employment land. It applied for permission for 89 residential flats. The local planning authority failed to determine the application, so the claimant appealed to the Secretary of State under Town and Country Planning Act 1990, section 78. An inspector dismissed the appeal, relying on the development plan, employment-land evidence, housing need and the prospect of employment development.

The claimant challenged the inspector’s decision under section 288, alleging errors of law, inadequate reasons, failure to consider material matters and procedural unfairness. The central issues were whether the inspector had properly interpreted Structure Plan Policy 14, assessed the Employment Land Study and viability evidence, and dealt with prematurity and affordable housing.

1. Ground 1 succeeded. The inspector’s treatment of Structure Plan Policy 14 was inadequate. He did not make clear whether the emerging local plan implicitly designated the relevant employment areas as “existing prime employment areas”, why that interpretation was legally available, or how the changed criteria-based approach in Policy 14 had been addressed. He also failed expressly or implicitly to deal with material concessions concerning the absence of such designation. The reasoning caused real prejudice.
2. Ground 2 failed. The passages referring to determination through the local plan process amounted to an erroneous reliance on prematurity, because the inspector did not apply the test in paragraphs 47–49 of PPG1. Nevertheless, those passages were additional to conclusions already reached independently on the suitability of residential use and housing need. The errors therefore made no difference to the result.
3. Grounds 3 and 4 succeeded. The inspector failed to explain which criticisms of the Employment Land Study he accepted or rejected, and what effect they had on the weight given to the study. The claimant was thereby unable to assess whether the inspector had erred in law. The inspector was entitled to regard the current industrial-land position as comparatively tight, but that did not cure the principal reasoning defect.
4. Ground 5 succeeded. The inspector was not entitled to rely on concerns about the viability study which had not been put to the claimant’s representative or witness, including the comparison between rental office space and residential capital value and the absence of other non-housing options. The claimant had no fair opportunity to answer those points, and it could not be said that the same result would necessarily have followed without them.
5. Ground 6 consequently succeeded. The conclusion that there was a realistic prospect of employment development could not stand because it depended on the legally flawed treatment of the Employment Land Study and viability evidence.
6. Ground 7 failed. The affordable-housing evidence was a makeweight. The inspector was not required to analyse it separately in circumstances where it did not establish an overriding need for release of the site.

The section 288 challenge succeeded on grounds 1, 3, 4 and 5, with the consequence that ground 6 also succeeded. The cumulative flaws required the inspector’s decision to be set aside.

Not stated in the judgment. This was a first-instance challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision on a section 78 appeal.