Simoni v Secretary of State for Communities and Local Government

A challenge under Town and Country Planning Act 1990, section 288, concerns legality, not planning merits. Questions of planning judgment and weight belong to the decision-maker. The court may intervene where a material consideration was omitted and that omission materially affected the decision, or where reasons fail to address the principal controversial issues. An inspector determining a section 78 appeal must decide the application afresh. The inspector need not consider a condition or alternative proposal that the applicant did not advance.

The applicant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of his section 78 appeal. The appeal concerned an application for continued use of land as a car wash and the erection of a shed, railings and a convex mirror.

The local planning authority had refused permission on grounds of noise and disturbance, visual amenity, and highway safety. The applicant alleged irrationality, failure to consider material matters, inadequate reasons, bias, bad faith and breach of Article 6. The central issues were whether the inspector had lawfully assessed the planning considerations and whether he was required to consider restricted opening hours as a possible condition.

1. The claim was dismissed. The inspector’s decision was a fresh determination of the planning application. Under section 79 of the Town and Country Planning Act 1990, he was not bound by errors in the local planning officer’s earlier report and had not been misled by them.
2. Questions of planning judgment and weight are for the decision-maker and are not for the court to substitute with its own view: Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759. The inspector was entitled, following his site visit, to assess noise from vehicle movements, car doors, conversation and general activity in addition to machinery noise.
3. There was no material failure to consider relevant matters. The inspector had considered the submissions, the site and the principal issues. Matters raised only after the appeal, such as the absence of complaints and accidents, could not establish an error in the decision. The court would intervene for failure to consider a material planning consideration only where the omission materially affected the decision: Bolton MDC v Secretary of State for the Environment [1990] 60 P&CR 343.
4. The visual-amenity and highway-safety challenges were disagreements with the inspector’s planning judgment. The inspector was entitled to use his own experience and assessment at the site and was not required to obtain professional highway evidence. The reasons were clear, cogent and sufficient when read as a whole. Reasons need address the principal controversial issues, not every material consideration: Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37; South Buckinghamshire CC v Porter (No 2) [2004] 1 WLR 1953.
5. The inspector was not required to consider restricted opening hours. The applicant had applied for extended hours and had not indicated in his appeal that he would accept a restriction. In any event, a restriction would not have overcome the independent concerns about visual amenity and highway safety. A section 288 claim is not a rehearing of planning merits: R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74.
6. The applicant was ordered to pay the first respondent’s costs, summarily assessed at £3,835.50.

The judgment does not state a prior appeal from a court decision. It records an earlier section 78 planning appeal, dismissed by an appointed inspector on 2 November 2010. This statutory challenge was dismissed.