City & Country Residential Ltd, R (on the application of) v Secretary of State for Communities and Local Government

On a challenge to a planning inspector’s decision, the court reviews legality rather than rehearing planning merits. Reasons must be intelligible and adequate, addressing the principal controversial issues and revealing how material legal and factual questions were resolved. A reasons challenge succeeds only where inadequate reasoning causes substantial prejudice.

Under PPG2, the comparison for the re-use of buildings in the Green Belt concerns the current and proposed uses, rather than merely the extent of existing or permitted development. A condition need not be imposed under paragraph 3.9 where the inspector reasonably concludes that it would be unreasonable to prevent occupiers using land immediately outside proposed dwellings.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s decision dismissing an appeal concerning the conversion of garage buildings associated with a listed country house into two flats.

The site was in the Green Belt. The inspector found that residential occupation, external amenity use and additional cars would cumulatively increase the impact on openness and the purposes of including land in the Green Belt. The claimant alleged inadequate reasons, failure properly to apply paragraph 3.9 of PPG2, and failure to take account of an existing permitted overflow car park.

1. Nature of review. The court was not entitled to rehear the planning merits or reinvestigate the inspector’s planning judgments. Its task was to determine whether the decision disclosed an error of public law. Applying the approach stated in South Bucks District Council v Porter No 2 [2004] 1 WLR 1953, reasons had to be intelligible and adequate, address the principal controversial issues, and avoid substantial doubt that the decision-maker had misunderstood law or policy. A successful reasons challenge also required substantial prejudice.
2. External amenity space. The inspector correctly applied paragraph 3.9 of PPG2. The issue was not whether a condition preventing use of the land outside the French doors could technically be drafted or enforced. It was whether imposing such a condition would be reasonable. In the context of the proposed design, the inspector was entitled to regard it as unreasonable to prevent future residential occupiers using the immediately adjoining space. The conclusion was an obvious planning judgment, reinforced by the uncertainty over access to the wider estate grounds, and was not open to legal challenge.
3. Overflow car park. Paragraphs 3.8(a) and (b) of PPG2 required comparison of the current and proposed uses. The fact that the car park already existed and its use was permitted did not answer the question. The relevant issue was the extent of its present use and the likely change resulting from the proposal. The inspector addressed that question and was entitled to find that additional cars would contribute to the cumulative impact on the Green Belt.
4. Disposition. No error of law was established. The claim failed. Costs were summarily assessed in the agreed sum of £5,177.75.

The claim was a first-instance judicial review of an inspector’s decision letter dated 25 June 2008. An earlier appeal decision dated 5 February 2007 had been quashed by consent on 25 June 2007, after which the appeal was reconsidered.