Dunster Properties Ltd v The First Secretary of State & Anor

A planning inspector may depart from an earlier decision concerning a materially similar proposal, because each inspector must exercise an independent planning judgment. Consistency remains important, however. The earlier decision is ordinarily a material consideration where the cases are indistinguishable on a critical issue.

The later inspector must weigh that decision and give reasons, which may be brief, for taking a different view. Merely asserting that each application turns on its own merits is inadequate where the schemes do not differ in the respect underlying the conflict. A reasons challenge succeeds only where the deficiency causes substantial prejudice, such as materially impairing the parties’ ability to assess a future application.

Dunster Properties Ltd sought planning permission for a first-floor extension to premises in the Cheyne Conservation Area. An earlier inspector had rejected an objection in principle to such an extension but dismissed the earlier appeal because of its particular design. A second inspector accepted the revised design but dismissed Dunster’s appeal because the extension would remove a gap and recessive view that contributed to the conservation area.

Burton J refused an application under section 288 of the Town and Country Planning Act 1990 to quash the second inspector’s decision: [2006] EWHC 2079 (Admin). The central issue was whether the second inspector had given adequate reasons for departing from the earlier inspector’s materially inconsistent assessment of the principle of a first-floor extension.

1. Appeal allowed unanimously. Lloyd LJ, with whom Stanley Burnton J and Chadwick LJ agreed, held that the second inspector had not adequately discharged his obligation to give reasons. The High Court’s order was set aside and the inspector’s decision was quashed.

2. An inspector must exercise an independent planning judgment and is not bound to treat an earlier inspector’s reasoning as the starting point. Nevertheless, a previous decision is ordinarily a material consideration where the cases are indistinguishable on a critical issue. Consistency promotes fairness and public confidence. An inspector who disagrees with the earlier decision must weigh it and explain the departure, although the explanation may be short.

3. The second inspector clearly disagreed with the first inspector about whether the gap above the property contributed to the conservation area. The deficiency lay in his failure to explain why. The two proposals differed in design, but not in relation to the general question whether any first-floor extension was consistent with the relevant planning policies. His statement that each case depended on its own merits therefore did not explain the conflicting conclusion.

4. Decision letters should be read straightforwardly and should not be subjected to excessively close or legalistic analysis. Reasons need address only the principal controversial issues. In this case, however, the inspector expressly declined to confront a directly conflicting material decision. Either he failed properly to consider it or he considered it without disclosing a material part of his reasoning. On either basis the decision was invalid.

5. The omission caused substantial prejudice. It impaired the developer’s ability to assess whether a further application had reasonable prospects and left any future decision-maker with two conflicting material decisions but no explanation for the later departure. The planning appeal remained to be determined following the quashing order.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The High Court’s order was set aside and the inspector’s decision was quashed: [2007] EWCA Civ 236.
2. High Court, Administrative Court: Burton J refused Dunster Properties Ltd’s application under section 288 of the Town and Country Planning Act 1990 and refused permission to appeal: [2006] EWHC 2079 (Admin).
3. Planning inspector: The inspector dismissed the appeal against the local planning authority’s refusal of permission for a first-floor extension.