South Gloucestershire Council v Secretary of State for Communities and Local Government

On an application to strike out a planning challenge under section 288, the court should ask whether the claim has no realistic prospect of success. An arguable error of law is sufficient for the claim to proceed.

Where development in the Green Belt is unnecessary because an alternative access is available, substantial housing need may require fuller reasoning before it can constitute very special circumstances. Planning guidance which is not directly applicable may nevertheless be a material consideration when it identifies standards relevant to an applicable policy. A decision-maker must also give coherent reasons when accepting that a proposal is inadequate yet treating the offered mitigation as sufficient.

South Gloucestershire Council challenged the Secretary of State’s grant of outline planning permission for a substantial housing development under section 288 of the Town & Country Planning Act. The developers applied for summary judgment, contending that the challenge was bound to fail.

The challenge concerned three issues: a proposed access road through Green Belt land; the assessment of design quality by reference to Circular 1/2006; and the adequacy of off-site open-space provision under local plan policies. The central question was whether the Council’s grounds disclosed an arguable error of law with a realistic prospect of success.

1. Application dismissed. The claim was not shown to have no realistic prospect of success. It was therefore inappropriate to strike it out at this stage. The application was dismissed with costs assessed at £15,651.
2. The court should approach a summary judgment application in a section 288 claim broadly as it would an arguability question. The issue was whether the claimant might establish an error of law, not whether the claim would ultimately succeed.
3. The proposed access road was inappropriate development in the Green Belt. The material before the Secretary of State indicated that the housing could be delivered without Green Belt harm by using an alternative on-site access, albeit with delay and redesign. It was therefore arguable that fuller reasons were required before the benefits of housing delivery could outweigh the Green Belt harm and amount to very special circumstances.
4. Circular 1/2006 was not directly applicable because it came into force after the appeal was lodged, and there was no requirement to produce a Design and Access Statement under it. Nevertheless, the standards identified in the circular were arguably material when assessing whether the applicable planning policies requiring high-quality design had been satisfied. Treating the circular’s criteria as carrying little weight merely because the circular was not directly applicable was arguably an error of law.
5. The Secretary of State accepted that the open-space proposal did not provide sufficient assurance that the policy requirements were met, owing to the absence of detailed schemes and evidence-based costs. It was arguable that the decision gave insufficient reasoning for nevertheless treating the offered sum as adequate and attaching only limited weight to the conflict with the development plan.