Hughes v The Secretary of State for Communities And Local Government

On a planning challenge under Town and Country Planning Act 1990, the court reviews legality, not the planning merits. Whether a matter is material is a question of law, but the weight given to material considerations is for the planning decision-maker, subject only to irrationality. An inspector may adopt a conservative approach to highway safety where visibility depends on land outside the applicant’s control and statutory enforcement powers provide no guaranteed outcome. The best interests of children must receive primary consideration, but they do not automatically determine the result. The question is whether, in substance, the decision-maker accorded them appropriate primacy before balancing them against other legitimate considerations. A failure to mention an alternative statutory power is immaterial where the court is satisfied that it would not have affected the decision.

The claimant, a recognised traveller, challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s refusal of planning permission for a residential traveller site. The inspector relied on harm to landscape character and appearance, inadequate highway visibility, and the resulting safety risk. He considered the children’s best interests and the family’s home and educational circumstances, but concluded that those matters did not outweigh the planning objections.

The challenge alleged that the highway assessment was weak, that the inspector failed to consider section 154 of the Highways Act 1980, and that insufficient weight was given to the children’s interests. A further issue was whether temporary permission should have been granted.

1. The claim was dismissed. The inspector’s decision was within the statutory powers and no relevant requirement had been breached so as substantially to prejudice the claimant.
2. Applying Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, the court distinguished between identifying a material consideration and deciding the weight to give it. The former is a legal question. The latter is a matter of planning judgment for the decision-maker, unless the conclusion is irrational.
3. The inspector was entitled to treat highway safety as a substantial objection. The available sightline depended on a cottage garden over which the claimant had no control. Section 79 of the Highways Act 1980 required a notice and provided an objection route whose outcome could not be guaranteed. It was therefore open to the inspector to regard reliance on that power as unwise and to adopt a conservative approach.
4. The inspector’s failure expressly to address section 154 of the Highways Act 1980 was immaterial. Applying the materiality principles in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P & CR 343, the court considered it highly probable that the inspector would have reached the same conclusion because section 154 also involved enforcement and an appeal process with no guaranteed outcome.
5. Under ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, the children’s best interests had to be considered first and treated as a primary consideration. They did not require a decision in their favour where other considerations, none treated as inherently more significant, outweighed them. The inspector had considered the family and children in substance. The court adhered to the approach in Collins v Secretary of State for Communities and Local Government [2012] EWHC 2760 (Admin) that express identification of the children’s interests as primary was unnecessary if the substance of the decision showed that approach.
6. The inspector was entitled to refuse temporary permission. The same highway risk could arise during the proposed temporary period, and the reasons given were legitimate planning considerations.

The matter was a section 288 challenge to a planning inspector’s decision following a section 78 appeal. The High Court dismissed the claim.