Warner v The Secretary of State for Communities and Local Government & Anor

A planning decision-maker must consider all material considerations, but the weight given to them is ordinarily a matter of planning judgment. An earlier planning decision is material for consistency only where the cases are alike in a relevant respect. The decision-maker must analyse any material difference and explain a departure where appropriate. A decision letter is read as a whole and practically, not subjected to statutory exegesis. A challenge under section 288 of the Town and Country Planning Act 1990 proceeds on traditional judicial review grounds. The court dismissed the challenge because the Inspector reasonably treated the proposed development as isolated development in open countryside, materially different from an earlier urban-fringe development.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision dismissing his appeal against refusal of planning permission for eight dwellings behind the Miners’ Arms in Sutton in Ashfield.

The claimant relied principally on an earlier permission for 230 dwellings on nearby land. He argued that the Inspector had failed to take that permission, its cumulative effects, or the principle of consistency into account, and that the conclusion of significant harm to the character and appearance of the area was irrational. The central issue was whether the earlier development was materially comparable and whether it affected the Inspector’s assessment of the proposed development.

1. The application was dismissed. The Inspector’s decision was not unlawful or irrational.
2. The weight given to material considerations is a matter of planning judgment. The court may intervene only where the decision is subject to an express statutory constraint or is irrational in the Wednesbury sense. That makes a challenge to an expert planning judgment particularly difficult.
3. Consistency in public decision-making means that like planning cases should be decided alike. This requires an assessment of whether the earlier case is alike in a relevant respect. If the cases are materially different, the earlier decision ordinarily lacks materiality for consistency. If the decision-maker departs from an indistinguishable earlier decision, reasons for departure may be required.
4. The Inspector was entitled to distinguish the earlier permission. That permission concerned development directly abutting established settlements and was properly treated as urban-fringe development. The proposed development would be isolated, surrounded by open countryside and unrelated to either settlement.
5. The Inspector was also entitled to conclude that the earlier permission had no material cumulative effect on the character and appearance of the proposed site. The associated open land remained open land, and the earlier Inspector had found that the access road and related works would not significantly affect the area.
6. The claimant had not raised the cumulative-effect argument before the Inspector. In any event, the decision letter, read fairly and as a whole, showed that the Inspector had considered the earlier permission and explained why it was immaterial. The challenge in substance attacked the merits of the planning judgment rather than the lawfulness of the decision-making process.

First-instance application under section 288 of the Town and Country Planning Act 1990. The application sought to quash an Inspector’s decision dismissing the claimant’s planning appeal.