Brinkworth v Welsh Ministers & Anor

An application under section 288 of the Town and Country Planning Act 1990 is confined to validity, statutory compliance and procedural legality. It is not a rehearing of the planning merits. A planning judgment will be disturbed only where the inspector acted perversely, took account of irrelevant matters, failed to consider relevant matters, breached statutory procedure or natural justice, or made a material factual error. The court must respect the inspector’s evaluative judgment, particularly where the inspector conducted a site visit. The weight given to competing planning considerations is for the inspector. A factual error is material only if it affected, or may realistically have affected, the decision.

The claimant challenged an inspector’s dismissal of his appeal against the refusal of outline planning permission for residential and associated development at Cydcoed Quarry. The challenge was brought under section 288 of the Town and Country Planning Act 1990. He alleged that the inspector had misidentified the site and had made irrational or inaccurate findings about vegetation, Japanese knotweed, waste, public rights of way, countryside character and urbanisation.

The central issue was whether the inspector’s decision contained a material error of law, procedural unlawfulness or Wednesbury unreasonableness, rather than merely an arguable error in planning judgment.

1. Application refused. The claimant failed to establish that the inspector’s decision should be quashed. He was ordered to pay the first defendant’s costs, summarily assessed at £5,028.
2. Section 288 permits a challenge to the validity of an order or action on the grounds that it is outside the powers of the Town and Country Planning Act 1990, or that relevant requirements were not complied with. It does not provide an opportunity to review the planning merits. The court applied the approach described in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 and The Queen on the Application of Newsmith Stainless Limited v Secretary of State for the Environment [2001] EWHC Admin 74.
3. A factual mistake may invalidate an inspector’s decision, but only where it affected, or may realistically have affected, the decision. The evidence did not establish that the inspector had considered a different site. His site visit, assisted by the claimant and the local planning officer, was significant. The wording of the decision letter was also capable of a rational interpretation consistent with the identified site.
4. The inspector’s descriptions of the site, its natural appearance, proximity to rights of way, location in open countryside, and likely urbanising effect involved either factual assessment or planning judgment. The word “close” was relative and could properly describe a right of way 51.5 metres away. The court could not substitute its own judgment for that of the inspector, who had visited the site.
5. The inspector had considered the claimant’s claimed benefits, including removal of waste and Japanese knotweed and the dwelling’s sustainable features. The weight given to those matters was a planning judgment, as recognised in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759. Policy ENV1 was considered, but the development was not necessary for derelict or contaminated land reclamation and would create an unacceptable impact on the character and appearance of the countryside.

Not an appeal. The claimant brought a first-instance application under section 288 of the Town and Country Planning Act 1990 challenging the inspector’s decision dated 6 May 2011.