East Hampshire District Council v Secretary of State for Communities & Local Government

Under section 54A of the Town and Country Planning Act 1990, a decision-maker must determine an application in accordance with the development plan unless material considerations indicate otherwise. The decision-maker must give priority to the plan, identify any material considerations, and exercise planning judgment. A planning inspector’s decision will not be unlawful merely because the statutory exercise is not repeated in express terms at every stage, provided the decision is read fairly and benevolently as a whole. The High Court should not interfere with the inspector’s planning judgment where the relevant policy and material considerations have been properly identified and considered.

East Hampshire District Council brought a statutory appeal under section 288 of the Town and Country Planning Act 1990 against an inspector’s decision allowing an appeal by the owners of Tiplen Green Farm House. The inspector had allowed a proposed two-storey rear extension which exceeded the 50 per cent floorspace limit in local policy H16.2.

The Council argued that the inspector had failed to apply the statutory requirement to follow the development plan unless material considerations indicated otherwise. The central issue was whether the inspector had misunderstood or failed to perform that statutory exercise.

1. The appeal was dismissed. The inspector had correctly identified the issue as whether the local policy should prevail in light of other material considerations.
2. The policy’s purpose was to preserve a range of dwelling types and sizes in the countryside. The inspector gave proper consideration and weight to that purpose, recognising that consistent support for the policy was important.
3. Although the inspector did not expressly repeat the statutory formulation in paragraphs 6 and 7 of his decision, the decision had to be read as a whole and benevolently. On that reading, he had considered the material considerations capable of outweighing the policy: the extension would not undermine the policy’s objectives, would improve the appearance of the house, and would address water penetration caused by the existing roof.
4. The inspector had therefore done what section 54A required: set out the development plan policy, give priority to it, identify material considerations, and exercise planning judgment on whether those considerations outweighed the policy. The High Court could not substitute its own planning judgment or interfere merely because the inspector’s conclusion produced an outcome lacking the consistency sought by the Council.
5. The Council was ordered to pay the Secretary of State’s costs, assessed at £5,742 after a reduction for excessive time claimed on documents.

• Planning Inspector: Allowed the owners’ appeal against refusal of permission for the proposed extension on 26 June 2006.
• High Court (Administrative Court): Dismissed the Council’s section 288 appeal and upheld the inspector’s decision.