Georgiou v Secretary of State for Communities and Local Government & Anor

A planning inspector may exercise independent planning judgment and is not generally required to devise an unrequested alternative planning condition. However, reasons must be intelligible and adequate on the principal important controversial issues. Where expert evidence addresses a material issue, the decision letter must explain sufficiently whether and why that evidence is rejected, accepted only for a limited purpose, or regarded as insufficient. Failure to do so may substantially prejudice an applicant’s ability to pursue a future planning application. An inadequate-reasons error can justify quashing even where the underlying planning conclusion is not irrational.

The appellant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of his appeal under section 78 concerning a condition attached to retrospective planning permission for a bar and restaurant. The condition required bi-folding doors to remain fixed shut. An acoustic report supported opening the doors during daytime hours, but did not address noise from the premises at night.

The Administrative Court, Sir Michael Harrison sitting as a Deputy High Court Judge, dismissed the challenge on 2 July 2010. The issues before the Court of Appeal were whether the Inspector had given adequate reasons for his treatment of the report, whether the decision was irrational, and whether the Inspector should have modified the condition to apply only at specified times.

Etherton LJ delivered the judgment, with Mummery LJ and Hedley J agreeing.

1. Disposition and reasons. The appeal was allowed because the Inspector’s decision letter was inadequately reasoned. Applying the principles summarised by Lord Brown in South Bucks District Council v Porter (No. 2) [2004] UKHL 33, reasons must be intelligible and adequate, address the principal important controversial issues, and disclose how material issues of fact or law were resolved. The degree of detail depends on the nature of the issues, and the challenger must show substantial prejudice.
2. Scope of the acoustic report. The report was directed to daytime use. It did not prevent the Inspector from exercising his own planning judgment about noise at other times, particularly at night. The Inspector was therefore entitled to retain the condition in relation to night-time use, and the irrationality challenge failed.
3. Unrequested modification. On the facts, sections 73, 78 and 79 of the 1990 Act did not impose a duty on the Inspector to modify the condition by restricting it to daytime use. The appellant had sought complete discharge, had not proposed a modified condition, and the material before the Inspector did not define the relevant daytime hours. The approach reflected in R (on the application of Ayres) v SSETR [2002] EWHC 295 (Admin), Brightwell v SSETR (1997) 73P & CR 418, Top Deck Holdings Limited v Secretary of State for the Environment [1991] JPL 961 and Marie Finlay v Secretary of State for the Environment [1983] JPL 802 supported that conclusion.
4. Failure to explain the report’s treatment. The decision letter did not make clear whether the Inspector rejected the report entirely or accepted its analysis for weekday daytime use while finding the condition necessary at other times. That uncertainty materially prejudiced the appellant’s ability to assess a future section 73 application. The Inspector’s decision was quashed and the matter remitted to the Inspector. Permission to adduce new evidence concerning outside seating was refused.

1. Court of Appeal (Civil Division) — On 7 July 2011, allowed the appeal, quashed the Inspector’s decision and remitted the matter to the Inspector: [2011] EWCA Civ 775.
2. Administrative Court — On 2 July 2010, Sir Michael Harrison dismissed the appellant’s application under section 288 of the Town and Country Planning Act 1990.