London Borough of Hillingdon, R (on the application of) v Secretary of State for Communities & Local Government

A challenge to an inspector’s planning decision under sections 63 and 288 is not an appeal on the planning merits. A challenge based on perversity faces a particularly high threshold where the inspector has made evaluative planning judgments. A decision is adequately reasoned if it addresses the principal controversial issues and enables the reader to understand the outcome. An alleged mistake of fact will not justify relief where the evidence supports the conclusion and there is no real prospect of a different decision. Conditions may be taken into account when assessing whether a proposed development is functional and safe.

The council challenged the Secretary of State’s inspector’s decision allowing Tesco’s appeals concerning redevelopment of a former garage site. The proposed development included a food shop, residential units, parking and servicing arrangements. The council argued that the decision was perverse, inadequately reasoned, based on a material mistake of fact, and procedurally unfair.

The central issues were whether the inspector was entitled to conclude that occasional simultaneous deliveries would not materially harm highway or pedestrian safety, whether adequate reasons had been given, and whether the inspector had misunderstood the evidence concerning vehicle manoeuvring and tolerance margins.

1. The claim was dismissed. The statutory challenge did not permit reconsideration of the planning merits. The inspector’s assessment of the likelihood and consequences of two delivery vehicles arriving together was a planning judgment. It was not arguably perverse, particularly in light of the evidence that the event would be extremely infrequent and the conditions controlling deliveries and vehicle size.
2. The inspector was entitled to conclude that the proposal remained manageable and functional. The possibility that residential parking or disabled parking might occasionally be blocked did not require refusal of permission where the likelihood and duration of the obstruction were limited and management intervention would be occasional.
3. The reasons challenge failed. Applying the approach in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, the decision addressed the principal controversial issues and made the reasoning intelligible. It was unnecessary to address every material consideration.
4. There was no material mistake of fact concerning the AutoTrack swept-path evidence. The inspector had accepted the relevant expert evidence, and the drawing itself showed room for manoeuvre beyond the vehicle’s swept path. In any event, there was no real prospect of a different decision and no substantial unfairness.
5. The procedural unfairness ground did not arise because it depended on the alleged mistake of fact, which had not been established.
6. The Secretary of State was awarded costs summarily assessed at £4,442. The interested party was refused costs because it had no separate interest requiring separate representation.

First-instance judicial review challenge under sections 63 and 288 of the relevant planning legislation. The application was refused.