Leelamb Homes Ltd v Secretary of State for Communities and Local Government

In a planning appeal, an inspector must take account of material restrictions securing the proposed use of land. Where a unilateral obligation limits occupation to persons in need of care and support, that obligation may be material to the classification of the development, the application of housing policy and the assessment of need. A failure to consider it may invalidate the decision where it could affect the statutory planning balance. A public law legitimate expectation requires specific and cogent evidence. A planning inspector may disregard material submitted after a hearing under rule 14, particularly where it introduces matters requiring further representations.

The claimant challenged the Secretary of State’s dismissal of its appeal against Maldon District Council’s refusal of outline planning permission for a continuing care and retirement community in Mayland, Essex.

The proposal included a nursing home, community facilities, bungalows and affordable housing for elderly residents. The inspector treated the scheme as involving mixed C2/C3 use and concluded that it conflicted with countryside, housing and sustainability policies. The claimant alleged a mistake of fact, errors concerning the Town and Country Planning (Use Classes) Order 1987, failure to consider a unilateral obligation, failure to consider PPS3 and an erroneous approach to need.

1. Decision quashed. The inspector’s dismissal of the planning appeal was quashed and remitted for redetermination. The claimant was awarded costs of £10,022.39. Permission to appeal was refused, although the time for any application to the Court of Appeal was extended.
2. The inspector was entitled to assess the nursing home by reference to the submitted sections plan. Describing the building as three storeys, although the plan described it as two and a half storeys, was not a material mistake of fact.
3. The classification of the market bungalows was potentially material to the application of local housing policy and to the question of need. The draft unilateral obligation restricted occupation to persons in need of care and support and required a domiciliary care package. The inspector appeared to consider the obligation only in relation to affordable housing, without explaining why the corresponding restrictions on the market bungalows were disregarded.
4. The court did not finally determine whether the restrictions themselves satisfied the C2 definition. It held that the inspector had failed to address a potentially material consideration. The error could not be treated as immaterial because the inspector had identified non-compliance with housing policy as one of three matters in the overall balance under section 38(6) of the Planning and Compulsory Purchase Act 2004.
5. There was no legitimate expectation that the inspector would consider additional provisions inserted after the hearing. The evidence did not establish a clear representation or conduct sufficient to create such an expectation. Rule 14(2) of the Town and Country Planning (Hearings Procedure) (England) Rules 2000 permitted the inspector to disregard material received after the hearing.
6. The challenges based on PPS3 and need failed. The inspector was entitled to conclude that the recognised need did not justify permission in an unsustainable location, particularly where provision might emerge through the local development framework.

The inspector dismissed the claimant’s planning appeal by decision letter dated 10 November 2008. The Administrative Court allowed the judicial review challenge in part by quashing that decision and remitting the matter for redetermination.