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

Planning appeals are not rehearings. The court will intervene only where the inspector has made a material error of law or public law error sufficient to vitiate the decision.

Where development is inappropriate in the Green Belt, the decision-maker must determine whether very special circumstances exist on the particular facts. The relevant factors must be considered individually and collectively, but disagreement with the planning judgment is insufficient.

An alleged misunderstanding of the proposed use will not invalidate the decision where the inspector was entitled to find the essential use as a matter of fact and the alleged error did not materially affect the reasoning.

Mr and Mrs Walker appealed against a planning inspector’s decision dated 6 April 2005 concerning an enforcement notice and retrospective planning application relating to alterations to the Old School House at Darton. The proposed development included a pitched roof and additional accommodation intended for educational uses, principally a private day nursery.

The inspector concluded that the works were inappropriate development in the Green Belt, that no very special circumstances had been shown, and that highway and pedestrian safety concerns also weighed against the proposal. Permission to appeal was granted on limited grounds. The central issues were whether the inspector had misunderstood the proposed use and whether that alleged misunderstanding materially affected the Green Belt and highway-safety conclusions.

1. The appeal was dismissed. The court’s task was not to rehear the planning merits. The appellants had to identify an error of law or other public law error sufficient to vitiate the inspector’s decision.
2. The inspector correctly directed himself that inappropriate Green Belt development required very special circumstances to justify departure from the applicable policy. He considered the relevant arguments, including employment, regeneration, nursery provision, nearby development and the comparison with the Taylor Robinson building. He was entitled to conclude that those matters, individually or collectively, did not amount to very special circumstances.
3. The inspector was entitled to find that the essential use would be primarily as a private day nursery for young children, while recognising that other educational uses were proposed. That factual conclusion was consistent with material previously advanced by the appellants. In any event, the alleged error did not materially affect the Green Belt analysis, which addressed the relevant planning considerations.
4. The highway and pedestrian-safety reasoning was also not vitiated by material error. Although the age of users could affect the likelihood of car journeys, the inspector’s overall reasoning relied more broadly on the site’s remoteness, inadequate public transport, steep access and lack of street lighting. That reasoning was open to him even if older children might use the facility.
5. The respondent’s costs were summarily assessed at £3,904, payable within 28 days.

• Planning inspector: The appeal against the enforcement notice and retrospective planning application was dismissed on 6 April 2005.
• High Court (Administrative Court): Richards J granted permission to appeal on limited grounds. Davis J dismissed the appeal and ordered payment of £3,904 in costs within 28 days.