Lady Berkeley, R (on the application of) v First Secretary of State & Ors

Section 38(5) of the Planning and Compensation Act 2004 applies only where policies in different development-plan documents conflict. It does not apply where the decision-maker identifies only a tension between policies within the same plan. Such tensions must be resolved by assessing the plan as a whole and balancing its competing objectives.

Blue Ribbon Network policies are not overriding super-policies. Policy 4C.12 requires priority for waterside uses where an identifiable and reasonably viable priority use exists. Policy 4C.20 is principally a design policy. It does not determine the suitability in principle of a proposed riverside use. A planning decision is challengeable only for an error of law or a relevant procedural irregularity, not merely because the court would balance planning policies differently.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the First Secretary of State’s decision granting planning permission for redevelopment of the former Lots Road power station in Chelsea.

The challenge alleged errors in the interpretation and application of the London Plan’s Blue Ribbon Network policies, particularly Policies 4C.12 and 4C.20. It also alleged that conflicts between the London Plan and local UDP policies had not been resolved as required by section 38(5) of the Planning and Compensation Act 2004. The central issue was whether the Secretary of State had erred in law in understanding or balancing those policies.

1. The claim was dismissed. The Secretary of State’s decision was not vitiated by any error of law. The claimant was ordered to pay the first defendant’s costs, subject to detailed assessment unless agreed, excluding costs separately ordered in relation to issues before Underhill J.
2. Section 38(5) of the Planning and Compensation Act 2004 did not arise. The decision letter did not treat the UDP policies as overriding the London Plan or ignore the Blue Ribbon Network policies. The Secretary of State had accepted that the London Plan prevailed where the development plans did not accord. No conflict between the UDPs and the London Plan had been found.
3. The approach stated by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1998] 1 WLR 1447 remained applicable to tensions between policies within the same plan. The decision-maker had to assess the plan as a whole and decide whether the proposal accorded with it. Section 38(5) did not alter that principle.
4. Policy 4C.12 did not create an overriding policy requiring the site to be sterilised for possible future waterside uses. The Inspector was entitled to find that no water-based use could reasonably be expected to occupy the site or part of it, because no viable priority-use proposal had emerged. In the absence of an identified need, no use required priority under that policy. The proposal also complied with the policy’s alternative requirement to capitalise on the water as an asset.
5. Policy 4C.20 was a design policy. It required high-quality waterside design, integration with the water space and an appropriate mix of uses, including public uses and open space. It did not determine the suitability in principle of a proposed riverside use. The Secretary of State was entitled to accept the Mayor’s assessment that the scheme met the policy’s criteria.
6. The court could not substitute its own view of the appropriate balance between planning policies. The challenge could succeed only upon an error of law or a relevant procedural irregularity causing prejudice. No such error or irregularity was established.