Bromley v Secretary of State for Communities and Local Government & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a decision-maker must give primacy to the development plan. A material consideration cannot justify departing from the plan if it is identical to a consideration fully assessed when the plan was adopted. The decision-maker may, however, rely on changed circumstances or new evidence. Whether the difference is significant, and what weight it deserves, are matters for the decision-maker unless the judgment is Wednesbury unreasonable. A planning decision must also give intelligible and adequate reasons addressing the principal important controversial issues and substantial prejudice must be shown for an inadequate-reasons challenge to succeed.

The claimant local authority challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal and granting outline planning permission for residential development on Metropolitan Open Land. The Inspector treated the continuing shortfall in housing land, the absence of sequentially preferable sites and the site’s comparison with another released MOL site as very special circumstances outweighing the policy harm.

The central issue was whether the Inspector had unlawfully revisited considerations already taken into account when the Bromley Unitary Development Plan was adopted, contrary to the statutory primacy of the development plan, and whether his reasons were adequate.

1. The claim was dismissed. The Inspector had not erred in law and had given adequate reasons for allowing the planning appeal.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the development plan has statutory priority. A decision-maker cannot depart from the plan by re-weighing the same consideration that was fully taken into account when the plan was adopted. That would substitute the decision-maker’s planning judgment for the judgment reflected in the plan.
3. The position differs where circumstances have changed or new relevant circumstances arise. The significance of the difference is for the Inspector, subject to the court’s supervision on ordinary public-law grounds. The Inspector must also consider whether the alleged material consideration is significantly different from one already considered in the plan process.
4. On the evidence, the Inspector was entitled to find that the serious housing shortfall had not reduced, that sequentially preferable sites were unavailable, that the need was becoming more urgent, and that the appeal site was comparable to the Worsley Bridge Road site. Those matters were not exactly the same as the considerations informing the UDP. The conclusion that very special circumstances existed was therefore open to him.
5. The reasons were sufficient under South Bucks DC v Porter (No 2) [2004] 1 WLR. Read straightforwardly by persons familiar with the issues, the decision letter explained the conclusions on the principal controversy and how the primacy of the recent UDP had been addressed. Greater explicitness might have been desirable, but it was not required.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The claim challenging the Inspector’s decision was dismissed.