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

A challenge under Town and Country Planning Act 1990, section 288, is not a rehearing of the planning appeal. The court must assess whether the inspector erred in law on the material that was before him. Later evidence may demonstrate that a different decision could now be justified, but it cannot establish that the original decision was unlawful. An inspector’s evaluative conclusion will stand unless it was one that no reasonable inspector could have reached on the evidence available at the time. Where the inspector had only limited financial evidence, the court may sympathise with the claimant and consider later evidence compelling, yet still dismiss the challenge if the original conclusion was legally open.

The claimant operated a combined shop and post office in premises that also formed part of his home. Hambleton District Council refused planning permission to change the shop room to domestic use. The claimant appealed, but the Inspector dismissed the appeal on the ground that the evidence did not sufficiently establish that the business was financially unviable.

On an application under section 288 of the Town and Country Planning Act 1990, the claimant relied on more recent accounts showing a less favourable financial position. The central issue was whether the Inspector had made an error of law by concluding, on the evidence before him, that the business’s lack of viability had not been demonstrated.

1. The application was dismissed. The High Court’s jurisdiction under section 288 of the Town and Country Planning Act 1990 did not permit a rehearing of the planning appeal.
2. The relevant question was whether the Inspector’s conclusion was legally erroneous on the material available to him. The later accounts produced to the court could not retrospectively establish an error in the Inspector’s decision. They had not been before him.
3. The Inspector had only one set of accounts, covering 1 October 2006 to 30 September 2007. Those accounts showed a fragile profit. The court considered that the position might have appeared different if the later accounts, the unpaid work of Mrs Benn and a notional rental cost had been taken into account. Nevertheless, the Inspector was entitled to conclude that the material before him did not sufficiently demonstrate that the business was unviable.
4. The threshold for intervention was not met. The court could not say that the Inspector had reached a conclusion that no reasonable inspector could have reached on the evidence before him.
5. The court endorsed the possibility of making a fresh planning application supported by fuller and more up-to-date financial evidence. The Secretary of State was awarded assessed costs of £2,348 after a £1,000 reduction for excessive time claimed on documents.

• High Court (Administrative Court): The planning application was refused by Hambleton District Council. The claimant appealed to the Inspector, who dismissed the appeal on 20 July 2010. The High Court dismissed the section 288 challenge.