Jarrett & Ors v Secretary of State for Communities and Local Government & Ors

In a planning challenge, a decision-maker must identify the relevant development-plan policies, decide whether the proposal accords with the plan, and state clearly any non-compliance. The statutory priority given to the development plan does not prevent material considerations from outweighing that non-compliance, but the reasoning must expose the balancing exercise. A decision letter is read fairly, as a whole, and through the eyes of an informed reader. An inspector need not answer every objection separately where the central issues have been addressed and the matters were adequately dealt with by the local authority. Evaluative impressions from a site visit should not readily be recast as precise findings of fact. A procedural departure during a site inspection gives rise to apparent bias only where the fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal and granting permission for a 15kw wind turbine. The challenge alleged misapplication of the development plan, failure to address objections, an unlawful or inadequately reasoned newt-protection condition, material factual error, and apparent bias arising from the inspector being briefly alone with the appellant during the site inspection.

The central questions were whether the inspector’s conclusion that the proposal complied with Policy CS8 was rationally compatible with his findings of significant environmental harm, and whether the remaining procedural and reasoning complaints established legal error.

1. First ground allowed. The inspector found harm to the landscape and neighbouring outlook, concluded that the proposal conflicted with Policy CS17, and then stated that it complied with Policy CS8. Policy CS8 supported infrastructure only where it had no significant adverse impact on recognised environmental assets. On the inspector’s own findings, the proposal caused significant adverse environmental effects and could not rationally be treated as complying with CS8. The inspector should have identified the non-compliance and then balanced it against the renewable-energy benefits and other material considerations. The error was material and the decision was quashed.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990, the decision-maker must identify and interpret relevant development-plan provisions, determine whether the proposal accords with the plan as a whole, identify material considerations, and assess their weight. The assessment is reviewable for irrationality or perversity, but the court does not substitute its own planning judgment.
3. A decision letter must be read in good faith and as a whole, by an informed reader. The inspector was not legally required to answer each objection concerning birds, bridleways, noise and anemometer readings expressly. Those matters had been considered by the Council, which had given apparently convincing answers, and they were not central to the appeal.
4. The challenge to the newt condition failed for the same reason. The issue had been explored by the Council and the inspector was entitled to focus on the central issues. The alleged material error concerning the turbine’s height also failed: the statement that it was similar in height to nearby trees was an evaluative visual impression, not a precise measurement.
5. The apparent-bias ground failed. Although the inspector departed from the procedural guidance by briefly being alone with the appellant, the contact concerned only access and the turbine’s location, was brief, remained visible to the Council’s officer, and occasioned no objection. Applying the fair-minded and informed observer test in [2001] UKHL 67 and the requirement that justice be seen to be done in [2004] UKHL 34, there was no real possibility of bias. The challenged decision was nevertheless quashed on the first ground.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The inspector’s decision allowing the planning appeal was quashed.