Amber Valley Borough Council v Secretary of State for Communities and Local Government

On a challenge under Town and Country Planning Act 1990, the court reviews legality, not the planning merits. Whether a matter is material is a question of law, but the weight given to it is a matter of planning judgment, subject only to irrationality. A development plan must be considered as a whole, with the decision-maker identifying the policies that are dominant or directly relevant. Planning decision letters should be read realistically. Reasons need address the principal controversial issues and disclose how legal and factual issues were resolved, but need not address every consideration. Where an existing planning permission is ambiguous, relevant extrinsic material may be used to determine its scope. A deemed application under section 177(5) is confined to the breach described in the enforcement notice.

The Council challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision granting planning permission for the part demolition and rebuilding of a barn in a Special Landscape Area. The permission followed the owners’ appeal against an enforcement notice issued after works exceeded the extent of rebuilding contemplated by an earlier permission for conversion to a dependent-relative unit.

The Council argued that the inspector had adopted the wrong starting point, mischaracterised the development, failed to apply local plan policies, relied on irrelevant material, and gave inadequate reasons. The central issue was whether the inspector had erred in law or whether the challenge merely sought to reopen the planning merits.

1. The claim was dismissed. The inspector had correctly considered the deemed application under section 177(5) of the Town and Country Planning Act 1990 for the development stated in the enforcement notice, namely the part demolition and rebuilding of a barn. Permission could not properly have been granted for the different development described as demolition and construction of a new dwelling.
2. The earlier planning permission was a relevant material consideration. Its wording was ambiguous as to the extent of works authorised. The inspector was entitled to consider the architect’s letter as extrinsic material bearing on that ambiguity.
3. The inspector’s findings that substantial parts of the original walls remained, that the rebuilt sections broadly followed the approved drawings, and that the footprint had not increased were findings of fact and planning judgment. They could not be impugned merely because the Council preferred another view.
4. Under section 38 of the Planning and Compulsory Purchase Act 2004, the development plan had to be considered as a whole. The inspector was required by section 177(2) of the 1990 Act to have regard to policies material to the breach. Policy H6 was at most tangential because permission for the residential conversion had already been granted. Policies H12 and EN1 were not directly applicable to the issue before the inspector. Policy EN6 was directly relevant, but its substance was addressed through the identified issue of effect on the character and appearance of the countryside and Special Landscape Area.
5. The inspector concluded that the completed works would have little different effect from the approved scheme and would not harm the relevant landscape. That was a planning judgment open to him. Since he considered the proposal compliant with the development plan, he did not need to identify material considerations justifying departure from it.
6. The reasons were adequate. They enabled the reader to understand how the principal issue was resolved and disclosed no substantial doubt that the inspector had erred in law. The Council’s disagreement with the outcome amounted in substance to an attempt to rerun the planning appeal.

Not stated in the judgment.