Fuller v Secretary of State for Communities And Local Government & Anor

A challenge under section 288 of the Town and Country Planning Act 1990 is confined to ordinary public law grounds. The court must decide whether the inspector’s decision was a lawful response to the material and arguments before him. It must respect planning judgment entrusted to the inspector and read the decision letter as a whole. An inspector need not resolve a disputed evidential issue if it is unnecessary to determine whether permission should be granted. Where policy requires harm to be minimised and permits harm only where outweighed by planning benefits, the inspector may grant permission subject to conditions addressing mitigation and future monitoring. Reasons may be brief, provided they adequately explain the conclusions reached and show that material considerations were taken into account.

Commodore Homes Ltd appealed against Islington Council’s failure to determine an application for a two-storey dwelling, partly at basement level. A planning inspector allowed the appeal and granted permission subject to conditions, including approval of an Arboricultural Method Assessment concerning a nearby maple tree.

The claimant challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. She argued that the inspector had failed to decide the likely effect of the development on the tree, had misunderstood policy DM6.5, had imposed unjustified conditions, and had given inadequate reasons for rejecting residents’ concerns.

1. The claim was dismissed. A section 288 challenge was not an opportunity to re-argue planning merits. The issue was whether the inspector’s decision was a lawful response to the material and arguments before him. Planning judgment remained for the inspector, and the decision letter had to be read as a whole.
2. The inspector was not obliged to determine precisely the extent of harm to the tree. Although he identified that matter as the main issue, he was entitled to conclude that the conflicting professional evidence did not require a definitive finding because the policy balancing exercise could be undertaken without it. Christchurch Borough Council v Secretary of State for the Environment [1994] 68 P&CR 116 did not require a different result, since that case concerned an issue which was crucial to the inspector’s primary decision.
3. Policy DM6.5 required trees and other vegetation to be considered holistically, impacts to be minimised, and damage or loss to be permitted only where there were overriding planning benefits. Read fairly and as a whole, paragraph 9 of the inspector’s decision indicated that the additional dwelling’s planning benefit outweighed any harm to the tree. The inspector’s description of the tree as having amenity value, but not being outstanding or unique, was a factor in the required balance and did not remove the tree from the policy.
4. The conditions relating to the tree were necessary and relevant. They implemented the policy requirement to minimise impact, notwithstanding that the inspector had not determined whether the tree would survive. The possibility of replacement if the tree became unviable was consistent with the decision.
5. The inspector’s response to residents’ concerns was brief but lawful. He stated that he had considered the matters raised and the material supplied, and that there were insufficient grounds to withhold permission. The evidence concerning the tree was subsumed within his treatment of the tree issue and could not affect matters which he had properly decided did not require determination.

The claimant was ordered to pay the first defendant’s costs, summarily assessed at £5,322.