Tanner, R (on the application of) v Secretary of State for Communities and Local Government

In a planning challenge, the court reviews legality rather than substituting its own planning judgment. An inspector need not record every precise measurement or answer every submission expressly, provided the decision identifies the material differences, addresses the relevant planning issues and gives intelligible reasons. Where an extant planning permission establishes that an alternative development is acceptable, the possibility that it may never be implemented is immaterial to the planning assessment. A permitted alternative may therefore be treated as the relevant fall-back position without determining its likelihood of construction.

The claimant challenged, under section 288 of the Town & Country Planning Act 1990, the refusal of permission for a garage as built. He also sought leave under section 289 to appeal against an inspector’s decision upholding an enforcement notice requiring its demolition.

The constructed garage differed from the approved 2007 plans in height, design, level and location. The inspector considered the impact on the conservation area, the setting of a neighbouring listed building, neighbouring living conditions and the possibility of constructing the approved garage instead. The central issues were whether the inspector had failed to address material matters and whether her reasons were legally sufficient.

1. Disposition. Permission to appeal under section 289 was granted and the appeal was heard with the section 288 claim. Both the claim and the appeal were dismissed. The claimant was ordered to pay costs of £5,334.
2. The inspector correctly identified the principal planning issues: the character of the conservation area, the setting of the neighbouring listed building and the living conditions of neighbouring occupiers. Her conclusions on those matters were planning judgments. They could not be challenged merely because the claimant disagreed with them.
3. The inspector was not required to state the precise difference in height or the exact seven-metre difference in location. Her decision recorded the material differences in height, location and land level and explained why the building as constructed was unacceptable. Those reasons were sufficient for the parties and the court to understand her reasoning.
4. The extant permission was properly treated as the fall-back position. Once permission had been granted, it had to be assumed that the relevant planning criteria had been properly applied and that the approved building was acceptable in planning terms. If that alternative was acceptable, whether it would actually be built was immaterial.
5. The inspector was entitled to rely on the approved plans, including the lower ground level and reduced height and volume. Her failure to discuss the seven-metre location difference in separate terms did not invalidate the decision because she was aware of it and had considered the relative situations of the buildings and land levels.

The judgment describes a rolled-up hearing directed by Mr Justice Silber. The court granted leave under section 289, heard the appeal with the section 288 claim, and dismissed both.