Leeds City Council v Secretary of State for Communities & Local Government & Anor

An inspector determining a planning appeal is not generally required to invent conditions to save an otherwise unacceptable proposal. However, where the inspector independently devises a condition, or package of conditions, to overcome a planning objection, rationality requires the condition to address that objection adequately. An inspector must also interpret relevant planning guidance as a whole. Where guidance refers to private gardens, front and rear gardens may fall within the expression unless the guidance indicates otherwise.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing retrospective permission for a two-storey extension used as a separate dwelling. The Inspector accepted that access to rear parking was inadequate for many vehicles, but considered that parking at the front could satisfy highway requirements. He imposed a condition requiring three front parking spaces.

The Council argued that the Inspector had misapplied supplementary planning guidance on private amenity space, failed to address the disjointed garden arrangement for the new dwelling, and failed to give adequate reasons.

1. The challenge succeeded in part and the matter was remitted for further consideration. The Inspector’s condition adequately addressed the highway objection, but did not adequately address the private open-space objection.
2. The supplementary planning guidance was to be read as a whole. The expression “private gardens” included both front and rear gardens. The Inspector was therefore entitled to aggregate the two gardens serving the original dwelling when applying the guideline based on two-thirds of gross floor area.
3. The general principle in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 applied. Reasons must enable the reader to understand how the principal important controversial issues were resolved, although they need not address every material consideration.
4. The authorities concerning conditions, including Hann v Secretary of State for Local Government, Transport and the Regions [2002] EWHC 507 (Admin), establish that an Inspector need not cast about for an unsuggested condition capable of saving an objectionable application. The Inspector must, however, consider matters raised before him.
5. This case was different because the Inspector devised the front-parking condition himself. Having chosen to address the planning objections by condition, he was required to ensure, to a standard of rationality, that the condition or package of conditions adequately met each relevant objection. The condition did not prevent continued use of the rear area by some cars and therefore did not resolve the accepted amenity problem caused by separating the new dwelling from its garden.
6. The Inspector’s reasons were consequently defective in relation to the new dwelling. The Secretary of State was ordered to pay the Council’s costs of £6,060.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990. The Inspector’s decision was remitted for further consideration.