JG Ipswich Llp v Secretary of State for Communities and Local Government & Anor

Where planning policy requires a developer to demonstrate that employment land is unsuitable or non-viable before redevelopment for other purposes, the developer bears that evidential burden. The decision-maker may conclude that non-viability has not been demonstrated where the evidence remains inconclusive, including unresolved questions about demand, competing sites, infrastructure and likely take-up. A failure to follow a policy marketing procedure will not determine the outcome if the decision-maker also considers the substantive viability issue. The greater job-creation potential of a proposed mixed-use development need not be decisive where the site may be required for other employment uses. A decision is adequately reasoned where it identifies the principal unresolved matters supporting the conclusion.

The claimant sought outline planning permission for a mixed-use redevelopment of a former sugar-beet factory site, including up to 1,100 homes and employment uses. The local planning authority failed to determine the application within the prescribed period, and the claimant appealed to the Secretary of State. Following an inquiry, the inspector recommended dismissal and the Secretary of State adopted that recommendation.

The claimant challenged the decision under section 288(1) of the Town and Country Planning Act 1990. The grounds concerned compliance with the local plan’s marketing policy, the assessment of employment viability, job-creation potential, and adequacy of reasons.

1. Application dismissed. The Secretary of State’s decision was legally valid. The claimant was to pay the Secretary of State’s costs, subject to any further order on written representations.
2. The local plan allocated much of the site for employment-related uses and policy EM 24 permitted redevelopment for non-employment purposes only if retention for appropriate employment use had been fully explored. The policy placed the burden on the developer to demonstrate that the site was inherently unsuitable or not viable for employment-related use.
3. The Secretary of State was entitled to proceed on the basis that the developer had not discharged that burden. The evidence left unresolved the demand for employment land, the possible availability of land at Felixstowe for port-related activity, the ability of the site to meet that need, and whether sufficient take-up could make employment development viable.
4. The absence of an agreed marketing campaign did not independently determine the case. The Secretary of State had nevertheless considered the substantive viability question, so any error concerning the procedural requirements of policy EM 24 could not affect the result.
5. The decision-maker was entitled to balance the proposed development’s asserted potential to create more jobs against the possible loss of land needed for other employment uses. It was not irrational to decline to treat the greater job-creation potential as decisive while material questions about alternative employment needs and the site’s suitability remained unanswered.
6. The reasons were sufficient. The inspector and Secretary of State identified the unresolved matters supporting the conclusion that non-viability had not been demonstrated. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the development plan therefore continued to govern the decision, absent material considerations justifying departure.

The claimant’s planning application was refused after the local planning authority failed to determine it within the prescribed period. The claimant appealed to the Secretary of State, who dismissed the appeal after considering the inspector’s report. The present application under section 288(1) of the Town and Country Planning Act 1990 was dismissed.