Horsham District Council v Secretary of State for Communities and Local Government & Anor

Planning permission need not be refused merely because a different scheme might achieve similar benefits with fewer harmful effects. Under paragraph 64 of the National Planning Policy Framework, the decision-maker must assess the design as a whole and decide whether it is poor design, taking account of relevant objectives, benefits and constraints. The policy does not require every conceivable opportunity for improvement to be taken, nor does it make the existence of a better alternative determinative.

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not planning merits. Weight and planning judgment remain for the decision-maker, subject to rationality and adequate reasons. Procedural fairness depends on context and requires a reasonable opportunity to know and answer the opposing case.

Horsham District Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing Barratt Southern Counties Limited’s appeal against refusal of permission for 160 dwellings at West End Lane, Henfield.

The council argued that the inspector had misapplied paragraph 64 of the National Planning Policy Framework by failing to reject a scheme that could have preserved more long-distance views from the site. It also alleged procedural unfairness because the inspector had considered the consequences of an alternative design without inviting further evidence or submissions.

1. The application was dismissed. The inspector’s decision was not unlawful.
2. Section 288 of the Town and Country Planning Act 1990 does not provide an opportunity to review planning merits. The weight given to material considerations and matters of planning judgment is for the decision-maker, unless the decision is irrational in the Wednesbury sense. The court interprets planning policy as a matter of law, but its application is for the decision-maker. Policy is read objectively and in context, without the rigour appropriate to a statute or contract.
3. Paragraph 64 of the National Planning Policy Framework does not mean that a proposal must be rejected because it fails to take every conceivable opportunity to improve an area or because a better alternative might exist. The design must be assessed in the round, having regard to the various relevant objectives and constraints. The inspector was entitled to conclude that the proposal was reasonable for the site, broadly accorded with national design objectives and was not poor design.
4. The inspector had considered views to and from the site, including the loss of some long views. He was entitled, on the evidence before him, to conclude that reducing that effect would probably create conflict with other objectives, including efficient use of land, open space, screening and protection of inward views. He was not required to speculate about an alternative scheme which had not been put forward. The identified visual harm was taken into account in the planning balance and was outweighed by the benefits of the development.
5. The post-decision alternative scheme and supporting witness evidence were inadmissible attempts to reopen the planning merits. Evidence in a section 288 challenge should generally be confined to the decision letter and material available to the inspector.
6. There was no procedural unfairness. The council knew the issues, had a reasonable opportunity to present evidence and make submissions, and could have advanced an alternative design or sought time to do so. Fairness is context-sensitive and does not require an inspector to warn a party of every possible planning judgment.

The council challenged, under section 288 of the Town and Country Planning Act 1990, the inspector’s decision letter dated 2 June 2014 allowing Barratt’s planning appeal. The High Court dismissed the challenge.