Wood, R (on the application of) v Secretary of State for Communities

A challenge under Town and Country Planning Act 1990, section 288, is confined to judicial review grounds. The court asks whether the alleged flaw in an inspector’s decision falls outside the generous discretion available to the inspector. An inspector’s decision should be read flexibly, rather than as a statute or contract, and substantial respect must be given to planning judgment. The court does not conduct a merits review or substitute its own planning assessment. An immaterial factual error will not justify quashing a decision. Nor will the court determine an issue which was not before the inspector.

Mr and Mrs Wood challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of their appeal concerning a condition attached to permission for their dwelling at Willow Cottage, Hampshire.

The condition required removal of a staircase serving the second floor. The claimants proposed replacing it with a unilateral undertaking limiting the use of that floor and requiring removal of roof lights. The inspector concluded that the condition remained necessary to secure the planning objective in Local Plan Policy H16. The claimants alleged factual error, confused and prejudicial reasoning, and that the dwelling should have benefited from the earlier planning permission.

1. The claim was dismissed. The inspector’s decision was not quashed.
2. A claim under section 288 of the Town and Country Planning Act 1990 is brought on judicial review grounds. The question is whether the alleged flaw falls outside the generous discretion recognised as available to a planning inspector. The court must approach the inspector’s decision flexibly, give substantial respect to planning judgment, and avoid reviewing the merits.
3. The alleged error concerning the staircase was not established. The earlier inspector had referred to the approved plans under the 2004 permission, which had not been implemented. The second inspector correctly stated that the second-floor staircase had been installed without permission and at the owner’s risk.
4. Even if there had been an error, it would not have been material. The inspector’s central issue was whether deletion, modification or replacement of condition 5 would meet the objective of providing a range of dwelling sizes in the countryside under Policy H16. His assessments of the roof lights, monitoring and enforcement of the proposed undertaking, the practicality of removing the staircase, and the claimants’ access needs were matters of planning judgment.
5. The allegation that the reasoning was confused, prejudicial or predisposed was unsupported. The inspector was evaluating the relevant considerations and explaining his conclusion. The separate contention that the dwelling should have benefited from the earlier permission was not an issue before the inspector. The court therefore had no proper basis to interfere.
6. Costs were assessed at £5,250, payable within 14 days unless the parties agreed otherwise.