Banner Homes Central Ltd v Secretary of State for Communities and Local Government & Anor

An error of fact in a planning decision is reviewable on a statutory appeal only where it gives rise to unfairness. Relevant considerations include whether the fact was established and objectively verifiable, whether the appellant was responsible for the mistake, and whether it materially affected the reasoning. A protected tree’s amenity value is not absolute: its retention may become vulnerable where it seriously affects residential amenity. An inspector need not refer expressly to every guidance document, expert opinion or argument, provided the reasons show that the material issues were understood and resolved.

The claimant appealed under section 288(5)(b) of the Town and Country Planning Act 1990 against the Secretary of State’s dismissal of two planning appeals concerning the redevelopment of Oakhurst and adjoining garden land. The inspector had refused permission because a protected oak tree would overshadow the remaining or proposed garden, creating pressure for its felling or substantial reduction and causing harm to the area’s character.

The claimant alleged errors of fact, perversity, inadequate reasons and procedural unfairness. The central issues were whether the inspector had lawfully assessed the relationship between the adjoining land, the garden and the protected tree, and whether his reasoning disclosed a legal error.

1. Appeal dismissed. The inspector’s decisions refusing planning permission were upheld.
2. An error of fact may amount to an error of law where it produces unfairness. The relevant conditions identified in E v Secretary of State for the Home Department [2004] QB 1044 concern an existing fact, its establishment as uncontentious and objectively verifiable, the appellant’s responsibility for the mistake, and materiality to the reasoning. The claimant could not establish unfairness because the appeal had proceeded on the common basis that the adjoining land formed part of Oakhurst’s usable curtilage if development did not occur. The claimant had itself reinforced that understanding in its submissions.
3. The inspector was entitled to conclude that the oak’s high amenity value did not make its future protection absolute. It was rational to find that the tree could be safe while causing no serious interference with residential amenity, but vulnerable if it had a dominating and oppressive effect on the occupiers’ living conditions.
4. The inspector was not required expressly to cite the government guidance on tree preservation orders. The guidance contained general principles consistent with his reasoning. His reasons adequately identified the tree’s amenity value, the significant overshadowing of the most useful part of the garden, the resulting effect on living conditions, and the likely difficulty of resisting an application to fell or reduce the tree.
5. There was no procedural unfairness. The risk to the tree and the Council’s likely difficulty in resisting an application had been expressly raised in the Council’s reasons for refusal, and the claimant had addressed the issue in its appeal submissions.

The judgment concerned a statutory appeal to the High Court under section 288(5)(b) of the Town and Country Planning Act 1990. The Secretary of State’s inspector had dismissed the claimant’s planning appeals on 3 February 2011.