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

A challenge under Town and Country Planning Act 1990, section 288, concerns legality rather than the planning merits. The court may intervene for legal error or irrationality, but planning judgment and the weight given to material considerations remain matters for the decision-maker. Reasons must be intelligible and adequate on the principal controversial issues, although the required detail depends on the case. A decision that permitted development does not apply is not itself a refusal of planning permission or of approval under a development order, and therefore does not generate a section 78 appeal. Private-law estoppel has no proper role in public planning control, and legitimate expectation has only very limited assistance in this context.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision concerning three planning matters at his property. Two appeals concerned refusals of planning permission. The third concerned the Council’s notification that proposed agricultural development was not permitted development under Part 6 of Schedule 2 to the General Permitted Development Order 1995.

The Inspector dismissed the first two appeals and treated the third as invalid because there was no statutory right of appeal. The claimant alleged procedural unfairness, failure to determine the third appeal, failure to consider or give sufficient weight to relevant policies, inadequate reasons, and failure to account for estoppel or legitimate expectation.

1. Application dismissed. A section 288 challenge is confined to grounds of law and is not a review of the planning merits. The court must not substitute its own planning judgment for that of the Inspector.

2. The weight given to a material consideration is a matter for the planning decision-maker. The court may intervene only where the decision is legally flawed or irrational. The Inspector had considered the relevant policies and reached planning judgments about the effect of the proposed development on the character and appearance of the area. The claimant had not shown irrationality.

3. Reasons must be intelligible and adequate on the principal important controversial issues, but the degree of detail required is flexible. The Inspector’s decision explained the relevant policies, identified the principal harm, and disclosed why the appeals failed. No material prejudice resulted from the Inspector’s failure initially to use the claimant’s final document bundle.

4. The third appeal was invalid. The claimant’s notification sought a determination under paragraph A2(2)(a)(i) of Part 6, Class A of Schedule 2 to the General Permitted Development Order 1995. The Council decided that the development did not fall within the permitted development class and required planning permission. That was not a refusal of planning permission, nor a refusal of approval of details submitted under a development order. Section 78 therefore supplied no right of appeal.

5. The claimant had alternative statutory routes, including certificates of lawfulness under sections 191 and 192 of the Town and Country Planning Act 1990. Estoppel and legitimate expectation did not assist him. Informal views of planning officers could not displace the statutory planning regime.

The claimant was ordered to pay the first defendant’s costs, summarily assessed at £9,068.