Johnson Brothers v Secretary of State for Communities and Local Government

Planning policies must be construed objectively, with a broad and non-technical approach appropriate to their nature. The court retains ultimate responsibility for determining their meaning, but must read an inspector’s decision letter fairly and as a whole. Whether a matter is material is a question of law; the weight given to it is ordinarily a matter of planning judgment and is reviewable only on established public-law grounds.

An inspector has discretion to regulate a planning hearing and restrict cross-examination. Fairness requires a proper opportunity to address relevant issues, but oral cross-examination is not automatically required. The question depends on all the circumstances, including the inspector’s assessment of whether cross-examination would materially assist the decision-making process.

Johnson Brothers sought judicial review of an inspector’s decision dismissing its appeal under section 78 of the Town and Country Planning Act 1990. The appeal concerned proposed storage and distribution units at Honeybourne Airfield Industrial Estate.

The claimant challenged the inspector’s construction and application of Local Plan Policies ECON 1 and ECON 2, his assessment of employment-land evidence and sustainability considerations, and his refusal to permit further cross-examination of a landscape witness. The claimant also sought to rely on further evidence after the inquiry.

1. Policy construction. The inspector was entitled to construe Policy ECON 1 as a protective policy preserving existing employment uses, rather than as an allocation of land for new employment development. The policy’s terminology was not wholly consistent, but it was not to be read as a statute or contract. Read with the Local Plan as a whole, the distinction between land being identified and land being allocated supported the inspector’s construction.
2. Planning judgment. The identification of land for employment protection did not establish that undeveloped land was suitable for the scale of development proposed. Policy ECON 1 was a material consideration, but the weight given to it was for the inspector as a matter of planning judgment. The inspector was entitled to conclude that the proposal conflicted with Policy ECON 2 because it involved an unsuitable scale of expansion and lacked adequate evidence of need. He was also entitled to accept the employment-land evidence before him and to regard poor accessibility as outweighing the claimed benefits.
3. Decision-letter approach. A decision letter must be read in good faith and in the context of the inspector’s overall reasoning. It need not address every argument in detail. The inspector identified the relevant main issues, considered the relevant policies and reached conclusions which disclosed no error of law.
4. Procedural fairness. The inspector had discretion under the inquiry rules to regulate the hearing and restrict cross-examination. The issue was whether the claimant had a proper and fair opportunity to canvass relevant matters. The claimant was represented by competent lawyers, knew the landscape issues, addressed them in submissions and was not taken by surprise. The restriction was rational, fair in the circumstances and caused no injustice or breach of natural justice or Convention rights.
5. The claim was dismissed. The application to rely on the further statement seeking to reopen the employment-land issue was refused.

The judgment describes the underlying planning history. Wychavon District Council dismissed the planning application on 10 August 2006. Following an inquiry, the inspector dismissed the claimant’s section 78 appeal by decision letter dated 1 August 2007. The present judicial review claim was dismissed.