Gale & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors

A challenge under section 288 of the Town and Country Planning Act 1990 must identify an error of law. Disagreement with the weight given to planning considerations, or with the merits of an inspector’s conclusion, does not suffice. Where highway-safety measures are proposed, the decision-maker need not be certain that they can be implemented. The question is whether, on the balance of probabilities, appropriate measures can be implemented and will adequately address highway-safety risks. The significance of consultation requirements, and whether consultation creates an obstacle to implementation, are matters of planning judgment. Archaeological policy requiring evaluation before determination is not necessarily absolute where expert advice supports securing investigation by planning condition.

Slough Borough Council refused planning permission for the demolition of a house and construction of ten dwellings. On appeal, an inspector appointed by the Secretary of State allowed the developer’s appeal and granted permission subject to conditions, including conditions concerning archaeological investigation and highway works.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. They challenged the treatment of archaeological policy and the assessment of highway safety, including proposed traffic-calming works and consultation under the Highways (Traffic Calming) Regulations 1999.

1. The application was dismissed. Permission to appeal was refused because the grounds were wholly misconceived and the case had no realistic prospect of success. The claimants were ordered to pay the first defendant’s costs, summarily assessed at £7,000, payable within 28 days.

2. The archaeological challenge failed. Policy EN20 and paragraph 21 of PPG16 did not require refusal merely because a field evaluation had not been completed before the planning decision. Their application depended on the site properly being characterised as an area of archaeological potential and on the expert advice. The inspector was entitled to impose a condition securing an archaeological investigation before development began. Whether that condition adequately protected archaeological interests was a matter of planning judgment.

3. The highway challenge also failed. The inspector had identified highway impact as a main issue and considered vehicle movements, parking, pedestrian facilities, road width, visibility and the proposed traffic-calming works. Complaints about the weight given to those matters raised no issue of law.

4. Under regulation 4 of the Highways (Traffic Calming) Regulations 1999, consultation was required where a highway authority proposed traffic-calming works. That did not mean that planning permission could be granted only when implementation was certain. The relevant question was whether, on the balance of probabilities, appropriate measures could be implemented and would be sufficient to avoid highway-safety risks. Whether consultation was likely to prevent implementation to such an extent that permission should be refused was itself a matter of planning judgment.

5. The inspector was entitled to rely on the professional advice that suitable highway measures could be devised and controlled through the planning process. The absence of a separate consultation objection before the inspector did not establish an error of law.

Slough Borough Council refused planning permission. An inspector appointed by the Secretary of State allowed the developer’s planning appeal and granted permission subject to conditions. The present section 288 application to quash that decision was dismissed by the Administrative Court. Permission to appeal was refused.