Davies v Welsh Ministers & Ors

In a planning challenge under section 288 of the Town and Country Planning Act 1990, personal circumstances may be material considerations and may, in an exceptional case, outweigh planning policy. A decision-maker must genuinely assess that possibility. It is insufficient merely to acknowledge personal hardship and then treat planning policy, or a separate landlord and tenant regime, as determinative. The court reviews the substance of the decision letter as a whole, reading it fairly and without excessive legalism, but must identify whether the statutory discretion was properly exercised. The weight given to a material consideration remains for the planning decision-maker, subject to legal irrationality. Planning permission may itself affect the operation of another statutory scheme, and that potential interaction can require consideration in the planning decision.

The claimant, a tenant farmer, challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of planning permission. The permission concerned an equine centre, tourist accommodation and an agricultural building. The claimant argued that the Inspector had failed properly to consider the personal circumstances of his elderly mother, who had lived for many years in a farmhouse forming part of the application site.

The Inspector considered those circumstances but treated matters concerning occupation and possession as principally belonging to tenancy agreements and other legislation. The central issue was whether she had lawfully exercised her planning judgment and discretion in assessing the balance between personal circumstances and planning policy.

1. The application was upheld. The Inspector’s decision was quashed. The first defendant was ordered to pay the claimant’s costs, with assessment to be dealt with by written submissions if necessary. Permission to appeal was refused.
2. A challenge under section 288 of the Town and Country Planning Act 1990 concerns the legality of the decision, not a rehearing of planning merits. The court must read an Inspector’s decision letter fairly, broadly and commonsensically, viewing it as a whole and avoiding both excessive legalism and undue deference to formulaic expressions.
3. Personal circumstances of a person affected by a development can be material considerations under section 70 and can, in an exceptional case, outweigh applicable planning policies. The decision-maker must therefore consider whether they are capable of doing so. The weight ultimately given to them is a matter of planning judgment, subject to irrationality.
4. The Inspector’s reasoning showed that she regarded the claimant’s mother’s personal circumstances as incapable of overriding planning policy. She wrongly treated the landlord and tenant regime as the appropriate forum, although the planning permission itself could affect the operation of that regime and the practical possibility of the mother remaining in her home.
5. The Inspector also failed properly to exercise her discretion on whether to require an obligation protecting the mother’s occupation under clause 5.3 of the deed. She approached that question solely through planning policy and did not engage with the non-policy personal circumstances.
6. The reference to “compelling reasons” in the decision letter did not impose an incorrect Article 8 test. It was properly understood as referring to reasons that had not persuaded the Inspector to reach a different planning conclusion.

The Inspector allowed the planning appeal on 18 December 2012. The claimant then brought this statutory challenge in the Administrative Court under section 288 of the Town and Country Planning Act 1990. The court upheld the challenge and quashed the Inspector’s decision.