Oxford City Council v Secretary of State for Communities & Local Government & Anor

A challenge under section 288 of the Town and Country Planning Act 1990 may target an inspector’s grant of planning permission on a deemed application arising from an enforcement appeal. A previous appeal decision is a material consideration. An inspector may depart from it, but must have regard to consistency and give reasons explaining the departure. Reasons are adequate where the decision, read as a whole, identifies the material changes, the planning judgment made and why the earlier conclusion was not followed.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an enforcement appeal, quashing an enforcement notice and granting permission for the use of a riverside pontoon as an extension to a restaurant.

A previous inspector had refused permission after concluding that the use could not be controlled so as to avoid night-time nuisance. The later inspector relied on changed circumstances, including acceptance of restricted hours, the identification of loud music as the principal complaint, and proposed conditions. The claimant alleged irrelevant considerations, inadequate reasons, perversity and ambiguity in the conditions.

1. The section 288 application was valid. Section 288 applied to the inspector’s grant of permission under section 177(1)(a), including permission on the deemed application under section 177(5). The absence of a section 289 appeal did not render the section 288 challenge invalid or an abuse of process.

2. The proper course for a local planning authority wishing to challenge both aspects of an enforcement appeal decision is ordinarily to proceed under both sections 288 and 289. Although the section 289 application was out of time, permission would have been granted had the section 288 challenge succeeded.

3. A previous appeal decision is capable of being a material consideration. Applying North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137, an inspector must exercise independent judgment, have regard to consistency, and give reasons for departing from an earlier decision where the cases are materially alike.

4. Applying the principles concerning adequate reasons in Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953 and Dunster Properties Ltd v First Secretary of State [2007] EWCA Civ 236, the inspector’s reasons were sufficient when read as a whole. He had explained why he reached a different planning judgment, by reference to the proposed hours restriction, noise evidence, site observations and enforceability.

5. The new operator’s willingness to accept an hours condition and evidence that it was workable were relevant to the feasibility and enforceability of conditions. The inspector did not treat the operator’s personal qualities as determinative. The conditions were not irrational, ambiguous or unlawful merely because enforcement could require an inference that persons on the pontoon were customers.

6. The application was refused. Permission to appeal was refused. Costs were ordered in favour of the first defendant in the agreed sum of £10,000; no second set of costs was awarded to the second defendant.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application was refused and permission to appeal was refused.