The Welsh Ministers & Ors v Davies

On a challenge under section 288 of the Town and Country Planning Act 1990, an inspector’s decision must be read fairly and as a whole, without excessive legalism. Personal circumstances may be material considerations capable in principle of outweighing planning policy, but the weight given to them is a planning judgment. An inspector may conclude on the facts that they deserve little weight; that conclusion does not show a legal misdirection. Once relevant policies are satisfied, it is exceptional for personal circumstances to outweigh the policy conclusion. An inspector may identify private tenancy or possession proceedings as the proper forum for resolving related rights, provided she does not express an erroneous view about their outcome. The appeal was therefore allowed.

The Welsh Ministers appealed against an order made by His Honour Judge Keyser QC on an application under section 288 of the Town and Country Planning Act 1990. The judge had quashed a planning inspector’s decision allowing developers’ appeals against Flintshire County Council’s refusal of permission for an equine centre, tourist accommodation and a replacement agricultural building.

Mr Davies, principally on behalf of his mother, challenged the decision because of the effect of the development on her long occupation of a farmhouse. The High Court held that the inspector had erred in law in treating her personal circumstances as incapable of outweighing planning policy. The appeal concerned whether that was the proper reading of the decision letter and whether references to tenancy and possession proceedings amounted to a further misdirection.

Lord Dyson delivered the judgment, with which Lord Justice Underhill and Lady Justice Macur agreed. The Welsh Ministers’ appeal was allowed.

1. The inspector’s decision letter had to be read fairly and as a whole, using a straightforward approach without excessive legalism. The omission of personal circumstances from the statement of the main issues was not decisive. ([1993] 66 P&CR 263; paras [7], [9], [17], [21].)
2. The weight given to a material planning consideration is a matter of planning judgment, not a question of law. The inspector’s statement that Mrs Davies’s personal circumstances deserved little weight naturally meant that she had assigned them little weight on the facts. It did not show that she considered herself legally unable to give them greater weight, or that they could never outweigh planning policy. (Paras [18], [21]-[22].)
3. The priority given to the development plan under section 38(6) of the Town and Country Planning Act 1990 did not make the absence of a specific policy requiring continued occupation fatal to the personal circumstances argument. Such circumstances remained capable in principle of outweighing policy considerations. However, where the requirements of relevant planning policies were satisfied, it would be exceptional for personal circumstances to outweigh the resulting policy conclusion. This reflected the approach in the Great Portland Estates case, reported at [1985] 1 AC 661. (Paras [19]-[22], [28].)
4. The inspector had not expressed a view about the substantive outcome of possible possession proceedings under the Agricultural Holdings Act 1986. Her view that tenancy and possession issues were appropriately dealt with through private law proceedings was therefore not a legal misdirection. The point raised on appeal had no substance, although its late presentation was unsatisfactory. (Paras [24]-[30].)

The inspector had considered the personal circumstances but was entitled to conclude that they did not provide sufficient planning reasons to refuse permission. No error of law was established.

• Court of Appeal (Civil Division): The Welsh Ministers’ appeal was allowed. [2013] EWCA Civ 1792.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Keyser QC quashed the planning inspector’s decision on an application under section 288 of the Town and Country Planning Act 1990, holding that the inspector had erred in law in her approach to personal circumstances.