Jefferson v National Assembly for Wales &Anor

On a planning appeal, the inspector exercises an original, de novo jurisdiction. The inspector must determine the appeal by reference to material considerations, including the development plan, as they stand when the inspector makes the decision. The statutory power to deal with the application as if made in the first instance confirms the original jurisdiction but does not freeze the relevant circumstances at the date of the local planning authority’s decision. Article 6 and natural justice concern procedural fairness and do not determine the substantive content of planning rights. A decision will not ordinarily be quashed for a procedural or reasons error where the decision was legally correct and the claimant suffered no prejudice.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of his appeal against Newport City Council’s refusal of permission for a two-storey side extension. Between the Council’s decision and the inspector’s decision, the Newport Unitary Development Plan was adopted and replaced the former development plan. The claimant argued that the inspector should have applied the planning framework existing when the Council decided the application, and advanced related arguments based on Article 6, natural justice and inadequate reasons. The central issue was whether a planning appeal must be determined by reference to material considerations at the date of the original decision or at the date of the inspector’s decision.

1. Ground 1 failed. A planning appeal under section 79 of the Town and Country Planning Act 1990 is a de novo hearing. The inspector has original jurisdiction to determine the application and is not confined to reviewing the local planning authority’s decision. That conclusion is supported by Stringer v Minister of Housing and Local Government and Robert Hitchins Builders Ltd v Secretary of State for the Environment.
2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 applies to any determination under the Planning Acts, including an inspector’s appeal decision. Read with section 27A of the 1990 Act, it requires the inspector to apply the development plan in force at the date of the inspector’s own decision, unless material considerations indicate otherwise. The statutory scheme contains no clear provision freezing material considerations at the date of the local planning authority’s decision.
3. The concluding words of section 79(1), allowing the authority to deal with the application as if made in the first instance, confer powers and confirm original jurisdiction. They do not impose an obligation to use only the circumstances existing when the local planning authority decided the application. The approach in Clyde & Co v The Secretary of State for the Environment concerned what constituted material considerations, not the temporal date at which they had to be assessed.
4. The current-policy approach was supported by the statutory purpose of controlling development by reference to current planning policy and by R v Secretary of State for the Environment ex parte Bickenhall Parish Council, Nottinghamshire County Council v Secretary of State for the Environment, London Borough of Newham v Secretary of State for the Environment and R (Erine Kides) v South Cambridgeshire District Council.
5. Ground 2 failed. Article 6 and natural justice protect procedural fairness and do not prescribe the substantive content of civil rights. The claimant had a fair opportunity to address the relevant statutory construction. In any event, under section 288, the court could uphold a decision where any procedural or reasons error caused no prejudice and the decision was inevitably correct.
6. Ground 3 failed. The inspector’s reasons were adequate when read straightforwardly and without excessive legalism, applying the guidance in Seddon Properties v Secretary of State for the Environment and Clarke Homes Ltd v Secretary of State for the Environment. The application was dismissed. The claimant was ordered to pay the First Defendant’s costs, summarily assessed at £8,338.32.

First-instance application for judicial review under section 288 of the Town and Country Planning Act 1990. The court dismissed the application and upheld the inspector’s decision.