Bell v Secretary of State for Communities and Local Government

A challenge under section 288 of the Town and Country Planning Act 1990 is concerned with legal error, not a rehearing of planning merits. A mistake of fact must concern an established and objectively verifiable fact, be attributable to neither the claimant nor his advisers, and have materially affected the decision so as to cause unfairness. An Inspector need give reasons on the principal important controversial issues, but need not address every consideration. The weight given to material planning considerations is ordinarily a matter of planning judgment. A conservation-area proposal must be assessed on its own facts, since the effect of development on a particular conservation area is fact-sensitive.

The claimant challenged under section 288 the dismissal of his planning appeal by a Planning Inspector. Barrow Borough Council had refused permission to replace upper-floor windows and doors at Crown Court House, Dalton-in-Furness, with uPVC units. The property stood within a conservation area. The Inspector concluded that the proposal would neither preserve nor enhance the conservation area’s character and appearance, although it would cause no material harm to nearby listed buildings.

The claimant alleged material errors of fact, failure to consider relevant local-plan policies, and inadequate reasons. The court also determined the defendant’s costs application.

1. The claim was dismissed. The Inspector’s conclusion that the proposed uPVC units would appear heavier and would detract from the building’s architectural and historic integrity was a planning judgment based on the overall appearance of the units. There was no material omission in failing expressly to record that parts of the outer frame would be rebated into existing openings.
2. The complaint concerning the removal of stone mullions and insertion of doors did not establish a reviewable mistake of fact. The relevant features appeared from the claimant’s own application and drawings, and any misunderstanding was attributable to his failure to correct the point when it was raised before the Planning Committee. In any event, the mullion issue was subsidiary: the appeal would have failed on the Inspector’s primary assessment of the 42 replacement windows.
3. The Inspector’s finding that the works would harm the conservation area was not inconsistent with her finding that they would not harm the setting of nearby listed buildings. Those were different planning issues. She was entitled to give the funding advice and benefits of refurbishment such weight as she considered appropriate.
4. Policy D17 was immaterial or, at most, neutral because the application concerned alteration of the building’s fabric and the Inspector had found that the proposal would adversely affect its architectural details or historic fabric. The relevant parts of policy D14 either concerned listed buildings, which this was not, or were addressed by the Inspector’s balancing of reuse benefits against the duty under section 72 of the Listed Buildings and Conservation Area Act 1990.
5. The reasons challenge failed. The Inspector clearly explained why she considered the Ulverston example and other comparables unsuitable as governing comparisons. Each conservation area is different, and the proposal was properly judged on its individual merits.
6. The defendant was awarded its costs. The costs were summarily assessed at £6,000, subject to reducing document work to five hours at £160 per hour.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The judgment does not state any subsequent appellate decision.