Cubitt -Smith v Secretary of State for Communities and Local Government & Anor

An application under section 288 of the Town and Country Planning Act 1990 is concerned with the legality of the planning decision, not a review of its planning merits. The court must not substitute its own view on the weight to be given to competing planning considerations. An inspector may balance the benefits of a proposed development against harm to the character of a building or street scene. A mistake or inadequacy in consultation material will not invalidate the decision where the inspector had the original representations and there is no evidence that the error affected the reasoning.

The claimant applied for planning permission for front and rear roof extensions to a terraced house in Putney. The local planning authority refused permission, and the inspector dismissed the claimant’s appeal on the grounds of harm to the character and appearance of the dwelling and street scene, and harm to the living conditions of a neighbouring property.

The claimant sought to quash the inspector’s decision under section 288 of the Town and Country Planning Act 1990. She alleged that the inspector’s assessment of the front dormer was irrational and that the decision concerning the rear extension was affected by a mistake of fact and procedural unfairness arising from defective consultation summaries.

1. Application dismissed. The inspector’s decision was not unlawful.
2. An application under section 288 of the Town and Country Planning Act 1990 is not an opportunity to rehear the planning merits. As explained in R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, a challenge alleging perversity may fall within the statutory jurisdiction, but the court must ensure that the proceedings do not become a disguised rehearing of the planning arguments.
3. The relative importance of planning considerations, and the weight to be given to them, are matters for the decision-maker. The court cannot substitute its own planning judgment. The inspector was entitled to accept the advantages relied upon for the proposed front dormer but conclude that its incongruity with the prevailing roofscape caused unacceptable harm. That conclusion was an exercise of planning judgment, as recognised in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.
4. The council’s consultation summary and correspondence schedule were inadequate and confusing. However, the inspector had the original representations and therefore knew which persons had objected. There was no evidence that he mistakenly believed that the occupants of No 21 had objected.
5. Under Part 1 and regulation 6 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009, representations were to be sent to and considered by the Secretary of State unless withdrawn. The inspector had received the relevant source material. The current occupants’ views were relevant but not decisive, since the inspector had to assess the effect on any future occupier of the neighbouring property. No mistake of fact or unfairness was established.