Ashtenne Industrial Fund Ltd Partnership & Anor v Secretary of State for Communities and Local Government & Anor

A statutory planning challenge is not a rehearing on the merits. The claimant must establish an error of public law, such as taking account of an immaterial consideration, failing to address a material consideration, misunderstanding policy, giving inadequate reasons, or adopting an unfair procedure.

Reasons need address the principal controversial issues, but need not answer every point or follow unnecessary legal formality. A planning inspector may exercise independent judgment and depart from a statement of common ground, provided the parties had a fair opportunity to address the issue and the decision gives adequate reasons. A retail need assessment may take account of overtrading, but its significance is fact-sensitive. The decision-maker need not quantify the precise need where the applicant has failed to prove that the proposal is justified.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s refusal of four planning and conservation-area appeals concerning a proposed mixed-use development at Chippenham.

The proposals included 192 dwellings and substantial retail floorspace. The inspector found no demonstrated need for the proposed retail floorspace, identified a sequentially preferable alternative site, found accessibility and retail-impact concerns, and concluded that the scheme conflicted with development-plan and national policies.

The claimants alleged errors concerning the interpretation of policies H2 and BD1, retail need and overtrading, the sequential approach, accessibility, retail impact, open-space provision, reasons, and procedural fairness.

1. Disposition. The claimants failed to establish any error of law in the inspector’s decision. Judgment was therefore given for the defendants.
2. A section 288 challenge is not a rehearing. The court must identify an error of public law and must not re-investigate planning merits or substitute its own planning judgment. Errors may include immaterial considerations, failure to consider material matters, material factual error, misinterpretation of policy, inadequate reasons, irrationality in rare cases, or procedural unfairness.
3. Reasons must be intelligible and adequate in the context of the issues argued. They must address the principal controversial issues, but need not deal with every issue or consideration. The decision letter should be read straightforwardly and without unnecessary legal sophistication, applying the principles in South Buckinghamshire County Council v Porter (No 2) [2004] 1 WLR 1953.
4. The inspector was entitled to interpret policy H2 as allocating the site principally for residential use within a mixed-use scheme, and policy BD1 as not supporting retail employment. The withdrawal of the development brief was a clear and obvious reason to attach little weight to it.
5. Overtrading could properly be considered in assessing retail need, but its significance depended on the circumstances, including the location of the overtrading stores and the policy objective of directing retail development towards town centres. Since the claimants had not proved their case on need, the inspector did not have to identify a precise residual figure.
6. The sequential assessment properly considered availability, suitability and viability. The inspector was entitled to conclude that the Bath Road/Bridge Centre site remained a realistic, sequentially preferable opportunity for some convenience retailing, despite constraints concerning the covenant, highways, conservation matters, parking and viability.
7. The inspector could depart from the statement of common ground after considering the evidence, including the transportation evidence, provided that he gave clear reasons. The claimants had a fair opportunity to address accessibility. The approach was materially different from that in Poole v Secretary of State for Communities and Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin).
8. The inspector’s treatment of retail impact and open-space provision was legally adequate. He was not required to answer every question in PPS6 separately or to provide detailed designs and costs for possible open-space improvements. The claim was dismissed.