Poole v Secretary of State for Communities and Local Government & Anor

A challenge under section 288 of the Town and Country Planning Act 1990 is confined to judicial-review grounds. It is not a rehearing of the planning merits. The court approaches an Inspector’s decision flexibly and gives substantial deference to planning judgment. Intervention is justified only for irrationality, perversity or another error of law. An error-of-fact challenge requires an established, objectively demonstrable mistake for which the claimant is not responsible, and which materially influenced the reasoning. Where any alleged procedural or evidential error would have made no difference to the result, the court may decline to quash. Planning judgments about local housing need, tenure, infrastructure contributions and the weight given to an undertaking are matters for the Inspector.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision dismissing his appeal against refusal of outline planning permission for nine affordable houses in open countryside near Lambourn, within an Area of Outstanding Natural Beauty.

The Inspector concluded that the evidence did not establish a sufficient local housing need, that the proposed 100 per cent intermediate-housing tenure was inappropriate, that the unilateral undertaking did not adequately secure local occupancy or affordability, and that necessary infrastructure contributions were not secured. The claimant challenged the Inspector’s treatment of his interest in the land, the housing-need evidence and the tenure issue. The central question was whether the Inspector had committed an error of law or material error of fact.

1. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £6,792. No costs order was made in favour of the Council.
2. A claim under section 288 of the Town and Country Planning Act 1990 may be brought only on grounds available in judicial review: Seddon Properties v Secretary of State for the Environment and E v Secretary of State for the Home Department were relied upon. The court retains a discretion not to quash where an error caused no real prejudice.
3. An Inspector’s decision must be read with practical flexibility, rather than as though it were a statute or contract: South Buckinghamshire District Council v Porter (No 2). The court must show substantial deference to an Inspector’s planning judgment and intervene only for irrationality, perversity or another error of law: Tesco Stores Ltd v Secretary of State. A section 288 claim cannot be used to reopen the planning merits: R (Newsmith Stainless Ltd) v Secretary of State.
4. An error-of-fact challenge requires four cumulative conditions: an existing factual mistake or ignorance; an objectively established and uncontentious fact; absence of responsibility on the claimant’s part; and material influence on the reasoning. This approach was taken from E v Secretary of State for the Home Department and applied in Eley v Secretary of State for the Home Department.
5. The Inspector was entitled to give little weight to the unilateral undertaking. The document was equivocal about the claimant’s interest in the land, and the Inspector was not required to take the initiative by seeking further evidence. In any event, even an effective undertaking would not have remedied the inadequately targeted cascade mechanism or the inadequate evidence of local need. Any error would therefore have made no material difference.
6. The questionnaires supplied by the claimant were reasonably treated as a limited snapshot rather than a comprehensive local housing-needs survey. A strategic housing-market assessment did not provide the required local evidence for Lambourn. The Inspector’s conclusions on local need and on the appropriateness of 100 per cent intermediate housing were planning judgments open to him.
7. The Inspector was also entitled to conclude that contributions for transport, libraries, the Primary Care Trust and public open space were justified, and that no adequate mechanism secured them. The conclusion under Policy OVS.3 was a lawful planning judgment, not an ultra vires demand for contributions.