Historic Buildings Monuments Commission for England (English Heritage) & Ors v Secretary of State for Communities and Local Government & Ors

In a planning challenge under section 288, the court reviews legality, not the planning merits. A decision-maker may reach a different evaluative judgment from an inspector, provided the decision is rational, addresses the principal controversial issues and gives adequate and intelligible reasons.

The words “impact” and “intrude” do not necessarily mean harm. The decision-maker may weigh significant heritage harm against other benefits. A failure to discuss alternative designs is not unlawful where the issue is properly treated as peripheral. A mistake of fact requires an established and objectively verifiable error, not caused by the claimant, which materially affected the reasoning. A person aggrieved under section 288 must generally have played a sufficiently active and substantial role in the planning process.

Coin Street Community Builders applied for permission for a major mixed-use development at Doon Street, London, including a 43-storey tower, housing, retail uses and a sports centre. The Secretary of State called in the application for determination.

The inspector recommended refusal because of harm to views, conservation areas and the settings of listed buildings, particularly Somerset House. The Secretary of State disagreed and granted permission. English Heritage, Westminster City Council and William Ashton challenged the decision under section 288 of the Town and Country Planning Act 1990.

The issues concerned the Secretary of State’s assessment of heritage impact, alternative development forms, viability and public funding, the adequacy of reasons, and whether Mr Ashton was a person aggrieved.

1. Challenges dismissed. The Secretary of State had not exceeded her powers, failed to comply with a relevant requirement, or substantially prejudiced the claimants.
2. Under section 288 of the Town and Country Planning Act 1990, the court may intervene for an error of law, failure to comply with a relevant requirement causing substantial prejudice, or a perverse decision. Planning judgments belong to the decision-maker and are not to be re-argued as merits appeals.
3. The Secretary of State was entitled to disagree with the inspector’s evaluative conclusions concerning the Royal Parks Conservation Area, the Royal National Theatre and the Royal Festival Hall. “Impact” and “intrude” were not necessarily equivalent to harmful impact. Read fairly and in context, the decision letter applied the correct statutory and policy tests.
4. In relation to Somerset House, the Secretary of State accepted that the development would fail to preserve an appropriate setting and cause significant harm, but was entitled to attach that harm less weight than the inspector had done. The references to mitigation conveyed a different judgment about the degree of harm and did not involve immaterial considerations or irrationality.
5. The Secretary of State was not required expressly to address alternative designs. The inspector had treated that issue as unnecessary to determining the acceptability of the proposal. The Secretary of State was entitled to adopt that approach.
6. The Secretary of State was entitled to rely on the inspector’s conclusions concerning viability and the omission of affordable housing. A precedent argument required more than generalised concern and could not readily arise from a development lacking a realistic prospect of implementation.
7. The phrase “at no public cost” was ambiguous, but the decision was intelligible in context and did not establish a qualifying mistake of fact. The requirements identified in E v Secretary of State for the Home Department were not met.
8. A person aggrieved under section 288 need not necessarily be a formal objector. The question is whether the person played a sufficiently active and substantial role in the planning process, assessed as a matter of fact and degree. Mr Ashton had not done so. His challenge was therefore dismissed, in any event, on the merits.