Resource Recovery Solutions (Derbyshire) Ltd v Secretary of State for Communities and Local Government & Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court may intervene for an error of law, but not to reconsider planning merits or the weight given to competing considerations. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the development plan must be identified, properly interpreted and considered as a whole. Relevant provisions govern the decision unless material considerations indicate otherwise. A regional strategy forming part of the development plan cannot be ignored merely because local policies address similar matters. Where a material policy has been revoked and subsequently restored before the decision, fairness may require the inspector to seek the parties’ views on its materiality and weight. Failure to perform those duties, where it may have affected the result, justifies quashing the decision.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its section 78 appeal against refusal of planning permission for a waste treatment facility in Derby. The principal grounds alleged failure to consider the East Midlands Regional Spatial Strategy, failure to determine whether the proposal accorded with the development plan as a whole, and errors concerning highways, air quality and waste policy.

The inquiry proceeded on the mistaken basis that the Regional Strategy had been revoked. Before the inspector’s decision, that revocation had been held unlawful in Cala Homes (South) v Secretary of State and Winchester City Council [2010] EWHC 2866. The court first determined the Regional Strategy and development-plan grounds.

1. The appeal was allowed and the inspector’s decision was quashed. The court did not review the planning merits. Its function was confined to identifying legal error within section 288.

2. Planning judgment remains for the inspector or Secretary of State. A decision letter must be read as a whole and in context. Reasons must enable the reader to understand how the principal important controversial issues were resolved.

3. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives the development plan statutory priority. The decision-maker must identify relevant policies, interpret them properly, determine whether the proposal accords with the development plan considered as a whole, and then assess whether material considerations indicate a different result. The plan need not be satisfied policy by policy.

4. The East Midlands Regional Spatial Strategy, and particularly Policy 38, was a relevant and important part of the development plan. It contained current regional evidence concerning waste capacity and a strategy for large centralised facilities. The inspector’s failure to refer to it meant that there was no adequate evidential basis for concluding that the statutory duty had been performed.

5. Following Cala Homes (South) v Secretary of State and Winchester City Council [2010] EWHC 2866, the inspector should have referred the matter back to the parties. The proposal had more than local significance, the parties had previously relied on the Regional Strategy, and its materiality and weight required submissions after its restoration.

6. The court could not say that the Secretary of State would necessarily have reached the same decision had the statutory duties been performed. The required threshold for quashing was therefore met.

The judgment does not state any further appellate history.