Britannia Developments Ltd v Secretary of State for Communities & Local Government & Anor

In a planning challenge, an inspector must address a principal important controversial issue which is material to the decision. The reasons need not refer to every consideration or argument, but they must enable the reader to understand how the main issues were resolved. The potential disruption to occupants caused by refusal of retrospective permission and possible enforcement action was capable of being a material consideration. Where that issue was raised and could have affected the planning balance, its complete omission from the decision letter was legally significant. The court must not speculate that the issue would have made no difference where the parties do not advance that case. The decision was quashed and remitted for reconsideration.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of retrospective planning appeals concerning dwellings built in positions differing from the approved plans. Three dwellings had been sold and occupied. Refusal of permission could lead to enforcement action, including alterations or replacement of the dwellings and disruption to their occupants.

The inspector considered privacy and amenity but did not address disruption to occupants. The central issue was whether that omission rendered the decision unlawful because disruption was a material and controversial consideration requiring reasons.

1. The application was allowed. The inspector’s decision was quashed and remitted to the Secretary of State. The claimant was awarded its costs, subject to detailed assessment.
2. Under sections 70 and 288 of the Town and Country Planning Act 1990, the decision-maker must consider the development plan and all material considerations, and a decision may be challenged where a legally significant error affects the decision.
3. Following the guidance in South Bucks District Council v Porter (No 2) 2004 UKHL 33, reasons must be intelligible and adequate. They must disclose how the principal important controversial issues were resolved. There is no duty to address every material consideration or peripheral argument.
4. The possible disruption to occupants was plainly capable of being a material consideration. Planning Contravention Notices showed that enforcement was a real possibility, and enforcement could require significant disruption, including removal or alteration of dwellings.
5. The issue was controversial because the inspector had to weigh potential disruption against the adverse planning effects of retaining the dwellings as built. It went to whether refusal and its consequences would be disproportionate. The inspector was therefore required to grapple with it, but the decision letter omitted it entirely.
6. The court could not imply that the issue had so little weight that it would have made no difference. Neither defendant argued that the result would inevitably have been the same, and the omission caused substantial legal prejudice.
7. The court expressed no view on the ultimate planning balance or whether refusal and subsequent enforcement would be disproportionate. Those matters were for the planning decision-maker.

Permission to appeal was refused.