Darlington Borough Council v Secretary of State for Communities & Local Government

Judicial review of a planning decision is concerned with legality, not the merits or the weight given to evidence. An Inspector need not address every subsidiary issue, but must deal with the important controversial issues. The decision must be read broadly and sensibly. The court should intervene only for an obvious legal error, failure to consider a material matter, consideration of an immaterial matter, or a conclusion unsupported by the evidence and so unreasonable as to be perverse. In assessing need for an out-of-centre leisure development, quantitative assessment is preferred where practicable, but market demand may be an appropriate indicator where quantitative assessment is impractical. Planning policies must be considered together and an apparent departure from one policy does not necessarily establish conflict with the development plan.

Darlington Borough Council sought judicial review of an Inspector’s decision allowing Landteam Developments Ltd’s appeal against refusal of planning permission. The permission concerned the change of use of an out-of-centre industrial unit to an indoor children’s soft-play centre. A previous appeal had been dismissed, principally because no adequate needs assessment or sequential site analysis had been provided.

The fresh application included evidence on need and an assessment of 38 alternative sites. The Inspector accepted that need had been demonstrated, that no suitable town-centre or edge-of-centre site was available, and that the transport consequences did not justify refusal. The Council challenged the Inspector’s approach to need, alternative sites, accessibility, car use and compliance with planning policy.

1. Claim dismissed. The court applied the ordinary public-law test described in the CCSU case, and its planning formulation in Ashbridge Investments v Minister of Housing and Local Government [1965] 3 All ER 371 and Seddon Properties v Secretary of State for the Environment 42 P&CR 26. The court could not reconsider the planning merits or the weight attached to evidence.
2. The Inspector was not required to address every sub-issue. His reasons had to address the important controversial issues and were to be read in a broad, common-sense manner. The high threshold for intervention was not met.
3. Although PPS6 indicated that quantitative need should be assessed where possible, the evidence entitled the Inspector to conclude that a quantitative assessment was impractical for this specialised leisure use. Market demand could be an indicator of need, depending on the circumstances. The Inspector was entitled to accept the applicant’s evidence, particularly where the Council had produced no evidence contradicting it. Burden of proof had no role in the planning decision.
4. The sequential site assessment was sufficiently flexible. The Inspector was entitled to treat the five-metre roof height as essential and the other requirements as capable of compromise. A future site could be relevant if a suitable site was likely to become available within a reasonable time, but a merely speculative possibility was insufficient.
5. The Inspector was entitled to accept the proposed public transport arrangements and to conclude that the transport objection could not be sustained. Under section 36 of the relevant Act, the development plan was an important consideration, but policies had to be read together. An apparent failure to comply with an individual policy did not automatically establish conflict with the plan as a whole.
6. The claim was dismissed. Costs were assessed at £7,336.