Maidstone Borough Council, R (on the application of) v Secretary oOf State for Communities & Local Government & Anor

A planning decision is unlawful where the decision-maker fails accurately to identify and apply the development plan in force, including the statutory requirement to determine the matter in accordance with that plan unless material considerations indicate otherwise. An error about the status and weight of a policy is not merely technical where the court cannot be satisfied that the decision-maker would have reached the same conclusion had the correct policy been applied. The reviewing court must not re-evaluate the evidence or perform the specialist planning balance itself. The appropriate course is to quash the decision and remit the matter for lawful redetermination.

The claimant local planning authority challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of permission for a Gypsy site comprising three mobile homes and two touring caravans.

The Inspector treated Policy HP10 of the Kent and Medway Replacement Structure Plan as emerging and gave it limited weight. By the date of the decision, the 2006 Structure Plan had been adopted and Policy HP9 was in force. The Secretary of State conceded that the decision contained an error of law and failed to comply with section 38(6) of the Planning and Compulsory Purchase Act 2004. The remaining issue was whether the court should nevertheless decline to quash the decision on the basis that the error could not have affected the outcome.

1. Application allowed. The Inspector’s decision was quashed and remitted for redetermination.
2. Under section 70(2) and section 79(4) of the Town and Country Planning Act 1990, read with section 38(6) of the Planning and Compulsory Purchase Act 2004, the appeal had to be determined having regard to the development plan and in accordance with it unless material considerations indicated otherwise. The adopted 2006 Structure Plan, and specifically Policy HP9, was therefore the applicable policy.
3. The Inspector expressly treated the relevant policy as emerging, said that it was not adopted, and consequently gave it limited weight. That was a material legal error. The Inspector’s references to related policies, practical difficulties, personal circumstances and the availability of alternative sites did not establish that she had undertaken the balance required by Policy HP9.
4. The court rejected the submission that the error was purely technical. It was not possible to conclude with confidence that the same decision would have been reached if the correct policy had been identified and given its proper weight.
5. To inspect the evidence and carry out the planning balance afresh would trespass into the statutory role of the specialist Inspector and amount in substance to an appellate exercise. The court’s proper role was supervisory, not to substitute its own planning judgment.
6. The matter was remitted, preferably to the same Inspector if available, with the possibility of determination by written representations and a site visit, subject to her assessment of whether further evidence concerning the new policy was required. Costs liability was postponed generally.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State submitted to judgment and accepted that the Inspector’s decision was unlawful. The Administrative Court quashed the decision and remitted it for redetermination.