FCC Environment v (1) Secretary of State for Communities And Local Government (2) East Riding of Yorkshire Council

In a challenge under Town and Country Planning Act 1990, the court reviews legality rather than the planning merits. An inspector’s report must be read fairly and in context. It need address the principal controversial issues, but need not mention every argument or material consideration expressly. A Grampian condition remains discretionary: the relevant policy does not require permission whenever there is some prospect of future mitigation. A mistake-of-fact challenge requires an established, objectively verifiable mistake concerning an existing fact or available evidence. Minor errors in wording do not invalidate a decision where its overall reasoning and conclusion remain clear.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s dismissal of its appeal against refusal of permission for a wind turbine at a former landfill site. The proposed turbine could affect the Air Defence Radar Service at RRH Staxton Wold and would have visual effects on the surrounding area.

The claimant alleged failures to take account of amended guidance on negative planning conditions, mistakes of fact, inadequate reasons, and irrationality. The central issues were whether the inspector misunderstood the relevant policy, whether a Grampian condition should have been imposed, and whether the reasons for refusal were legally adequate.

1. The application was dismissed. The inspector’s decision was not shown to contain an error of law, inadequate reasoning or a Wednesbury unreasonable planning judgment.
2. A section 288 challenge is not a review of planning merits. Decision letters and inspectors’ reports must be read in a straightforward, common-sense manner and in the context of the issues and submissions. They need address the principal important controversial issues, but need not rehearse every argument or refer expressly to every material consideration. The court applied the approach in South Somerset DC v David Wilson Homes [1993] 66 P and CR 83, Clarke Homes v Secretary of State for the Environment [1993] 66 P & CR 263, and R (Newsmith Stainless Limited) v Secretary of State for Environment Transport and the Regions [2001] EWHC 74 (Admin).
3. The amended advice in the ODPM letter did not require permission to be granted whenever there was some prospect of mitigation becoming available. The decision-maker retained a discretion whether to impose a Grampian condition. Such a condition should not be imposed where there were no prospects at all of the required action being performed within the permission period, but refusal on that basis required sound planning reasons. The court relied on British Railways Board v Secretary of State for the Environment and Hounslow LBC [1994] JPL 32 and explained the effect of Merritt v SSETR and another [2000] 3PLR 125.
4. The inspector’s finding that no site-specific mitigation proposal demonstrated an available solution was a planning judgment on the evidence. The alleged mistake of fact did not satisfy the criteria in E v Secretary of State for the Home Department [2004] QB 1044.
5. The reasons challenge failed under South Bucks District Council v Porter [2004] 1 WLR 1953. The report explained the visual effects, the moderate harm in the immediate vicinity, the breach of Policy E3, the radar-safety harm and the conclusion that the proposal was not sustainable development. An apparent oversight in referring to “appearance” under Policy IN13 did not undermine the overall intelligibility of the reasoning.

This was a first-instance judicial review application in the Administrative Court.

• Inspector’s decision: the planning appeal was dismissed after the local planning authority had refused permission.
• High Court (Administrative Court): the section 288 application was dismissed.