Royal Borough of Windsor and Maidenhead v Secretary of State for Communities and Local Government

On a challenge under Town and Country Planning Act 1990, an inspector must apply the statutory Community Infrastructure Levy regime correctly before deciding whether infrastructure contributions are payable. Where transitional provisions disapply liability under that regime, the issue must instead be determined by the applicable local plan and supplementary planning documents. A failure to address those planning requirements is a material error of law requiring the decision to be quashed.

The claimant local authority challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal against refusal of planning permission for the change of use of an old post office from retail to residential. The challenge principally concerned the inspector’s conclusion that the authority was a Community Infrastructure Levy charging authority and his consequent refusal to require or consider infrastructure contributions. The Secretary of State accepted that the statutory regime did not apply because transitional provisions had disapplied liability. The central issue was the legal consequence of that error.

1. The claim succeeded. The inspector’s decision was quashed.
2. The inspector had misinterpreted the Community Infrastructure Levy Regulations. The relevant transitional provisions disapplied liability under the Community Infrastructure Levy regime, so the proposed development was not liable for payments under that regime.
3. Once that regime was found inapplicable, infrastructure costs had to be considered by reference to the applicable local plan and supplementary planning documents. The inspector had ignored those provisions and failed to require, or properly consider requiring, the contribution sought by the local authority.
4. The error was material. The Secretary of State accepted the mistake and consented to the decision being quashed. The unrepresented second defendant’s dissatisfaction with the Secretary of State’s decision not to defend the claim did not prevent the court from granting relief, since the claim and concession established that the claimant was right.
5. Costs were payable by the Secretary of State to the claimant in the agreed sum of £4,125.