Borough of Telford and Wrekin & Anor v Secretary of State for Communities and Local Government

A challenge under section 288 of the Town and Country Planning Act 1990 concerns legality, not a rehearing of planning merits. Development-plan policies must be interpreted objectively, but their application to facts involves planning judgment reviewable only on public-law grounds. Under the National Planning Policy Framework, the sequential test does not require a single winner where competing out-of-centre sites are materially equivalent. The Practice Guidance informs the assessment but is not prescriptive. A planning obligation can support permission only if it satisfies Regulation 122 of the Community Infrastructure Levy Regulations 2010. Pooled infrastructure contributions may qualify in an appropriate case, but a contribution based on an unrealistic assumption about future development may fail the necessity requirement.

A developer appealed to the Secretary of State after the Council failed to determine an application for a food store and associated development at Audley Avenue, Newport. The Inspector allowed the appeal and granted planning permission. The Council and a promoter of a competing Station Road site challenged that decision under section 288 of the Town and Country Planning Act 1990.

The challenges concerned the sequential test, the treatment of greenfield and previously developed land, the interpretation of development-plan policies, the legality of a pooled highways contribution under Regulation 122 of the Community Infrastructure Levy Regulations 2010, and procedural fairness.

1. The section 288 challenges failed and the Inspector’s decision stood. The jurisdiction was confined to statutory validity and public-law grounds; it did not permit a review of planning merits. The court applied the approach in Newsmith Stainless Ltd v Secretary of State [2001] EWHC Admin 74.

2. The meaning of a development plan is ultimately a matter for the court, construed objectively in context. Its application to particular facts, however, involves planning judgment for the Inspector, subject to Wednesbury review. Development-plan policies may contain broad and competing objectives which require a balance. The approach in Tesco Stores Ltd v Dundee City Council [2012] 2 P. & C.R. 9 was applied.

3. The sequential test did not mandate a stark choice between competing out-of-centre sites. A decision maker could find them sequentially equal where their relative accessibility and town-centre linkages did not disclose a material advantage. The relevant assessment concerned the sites’ transport connections, proximity to the centre and likelihood of forming links with it. The Practice Guidance informed, but did not dictate, the result.

4. The Inspector was entitled to treat the sites as sequentially equivalent after considering walking, bus, cycling and car travel. She was also entitled to give limited weight to the competing site’s wider walk-in catchment and to treat the brownfield status of the appeal site as a material planning consideration rather than as a separate statutory-style sequential test.

5. The Inspector was not required formally to record a final conclusion on availability, suitability and viability where she did not exclude the competing site on those grounds. Those matters were necessary threshold considerations but did not themselves establish sequential superiority.

6. Under Regulation 122, the highways contribution had to be necessary to make the development acceptable, directly related to it, and fairly and reasonably related in scale and kind. The Inspector was entitled to reject a pooled contribution calculated on the premise that several mutually exclusive developments would all proceed. Derwent Holdings v Trafford Borough Council [2011] EWCA Civ 832 did not support the proposed approach, while Persimmon Homes North Midlands Limited v Secretary of State [2011] EWHC 3931 showed that pooled costs could qualify in an appropriate case.

7. The fairness challenge failed. The Regulation 122 issue had been raised before the inquiry, discussed at a round-table session, and left for determination on the evidence. The Inspector was not required to disclose a provisional view and invite further submissions. The principle stated in F. Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] A.C. 295 applied. The guidance in R (on the application of Edward Pool) v Secretary of State for Communities and Local Government and Cannock Chase District Council [2008] EWHC 676 (Admin) did not require a different result.

This was a first-instance statutory challenge in the Administrative Court to the Inspector’s decision dated 2 August 2012. The judgment states that the Inspector allowed the developer’s planning appeal and granted planning permission. The challenge was dismissed and the decision stood.