Brightwell, R (on the application of) v Secretary of State of Communities and Local Government & Anor

A challenge under Town and Country Planning Act 1990, section 288 is concerned with legal error in the challenged planning decision. It is not an opportunity to introduce material that was not before the inspector or to reargue the planning merits.

Where policy requires an agricultural justification for a dwelling in the countryside, the inspector may apply both functional and financial tests. Article 8 requires family life and interference with the home to be weighed against the public interest; it is not an absolute bar to disruption. A costs decision is challenged by judicial review, not under section 288.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decisions dismissing three appeals concerning land known as The Piggeries. The appeals concerned conversion of a stable block into a dwelling, temporary retention of residential caravans, and retention and completion of agricultural buildings.

The inspector had concluded that the proposed dwelling failed the functional and financial tests in PPS7, that the caravans consequently lacked agricultural justification, and that the buildings lacked agricultural need and harmed the character and appearance of the countryside. The claimant also challenged the inspector’s award of costs in relation to one appeal and relied on Article 8. The central issues were whether the inspector had made any error of law and whether the challenge to the costs decision was brought by the correct procedure.

1. The planning appeals. The inspector was entitled to conclude that a dwelling in the countryside required sound agricultural justification and that both the functional and financial tests were unmet. The conclusions were supported by the material before him and disclosed no legal error. The proposed temporary retention of residential caravans therefore also lacked justification.
2. Agricultural buildings. The inspector was entitled to find that the buildings were not justified by agricultural need and had a prominent, cluttered and untidy visual impact. Those conclusions were open to him on the evidence and were not unreasonable.
3. Article 8. Article 8 required the interference with the claimant’s home and family life to be included in the balancing exercise. It was not an absolute bar to disruption. The inspector had balanced the family’s circumstances and long occupation against the public interest in economic well-being and environmental protection. His conclusion that refusal was necessary and proportionate was lawful.
4. New material. Evidence concerning later arrangements with BQP, family circumstances and local support was not relevant to the lawfulness of the inspector’s decision because it had not been before him. Such material could be placed before the local planning authority or considered in the separate injunction proceedings.
5. Costs. The inspector applied the correct test of unreasonable behaviour in awarding costs concerning Appeal A. A challenge to an adverse costs decision should be made by judicial review, rather than under section 288. In any event, the costs decision disclosed no error of law. The application was dismissed. The Secretary of State’s costs were summarily assessed at £2,000.

The judgment describes three appeals determined by a planning inspector in decision letters dated 3 April 2008. Earlier enforcement and injunction proceedings were mentioned, but this was a first-instance statutory challenge to the inspector’s decisions. The application was dismissed.