Schlesinger, R (on the application of) v Secretary of State for Communities & Local Government & Anor

Under section 288 of the Town and Country Planning Act 1990, a planning decision may be quashed only if it was outside the statutory powers or if the claimant suffered substantial prejudice from non-compliance with a relevant requirement. A policy which has not been saved is not part of the applicable development plan and cannot support a challenge based on failure to consider it. An inspector may consider whether a proposal’s objectives can be met by alternative development, and may determine an appeal on the basis of an as-built development where the parties agreed, or acquiesced in, that approach at the inquiry. The claim was dismissed.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of an appeal against the refusal of planning permission for a loft conversion at her home. She argued that the inspector had failed to consider relevant equality and planning material, had considered irrelevant matters, had acted through an unlawful procedure by addressing the development as built, and had failed properly to assess the original proposal.

The central issues were whether policy ST19 of Hackney’s 1995 Unitary Development Plan remained applicable, whether the inspector’s treatment of the evidence and alternative accommodation options was lawful, and whether the parties had agreed to the retrospective basis on which the appeal was determined.

1. Claim dismissed. The court rejected all five grounds of challenge under section 288 of the Town and Country Planning Act 1990.
2. Policy ST19 of Hackney’s 1995 Unitary Development Plan had not been saved by the Secretary of State’s direction dated 21 September 2007. The strategic policies ST1 to ST45, including ST19, therefore fell away and formed no part of the relevant development plan when the inspector considered the appeal. The alleged report concerning the Orthodox Jewish community consequently could not establish a failure to consider a relevant policy. The court also noted that the report’s status was uncertain and that it was neither a Hackney Council document nor an adopted planning policy.
3. The inspector was entitled to consider whether the family’s accommodation needs could be met by basement or ground-floor extensions rather than by the loft conversion. That was part of the overall planning judgment. She was also entitled to conclude that the personal circumstances did not outweigh the harm to the character and appearance of the area or justify setting aside the adopted policy.
4. The inspector had determined the appeal on the retrospective basis agreed at the inquiry. Those affected were present and no formal objection was taken. The claimant could not subsequently challenge that procedural course. It was also commonplace for planning inspectors to consider variations from the original plans.
5. The inspector had considered both the original proposal and the development as built. Her conclusion that altering the existing works to accord with the original plans would not overcome the identified harm demonstrated that she had addressed both matters.
6. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £4,696. A transcript was ordered at public expense, and time for applying for permission to appeal and, if necessary, serving a notice of appeal was extended to 21 days after provision of the transcript.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s planning decision. No earlier judicial decision is stated in the judgment.