Lear Investments Ltd v Welsh Ministers

An inspector determining a planning appeal must address each substantial issue raised by the parties and give intelligible and adequate reasons. Where an appellant advances evidence that an existing employment site is uneconomic to maintain, the inspector must engage with that case; considering only refurbishment or redevelopment options is insufficient. An inspector may reason from issues ventilated in the appeal, but should not rely on an unventilated issue without giving the parties a reasonable opportunity to respond. A failure to consider a material matter, or reliance on an immaterial matter, warrants quashing unless the court is satisfied that the outcome would necessarily have been the same.

The claimant owned an industrial estate divided into eight units and sought outline planning permission to replace it with residential units. The local planning authority refused permission on employment-land grounds. On appeal under section 78 of the Town and Country Planning Act 1990, the inspector dismissed the appeal.

The claimant challenged the inspector’s decision under section 288, alleging that the inspector had failed to address evidence that the estate was uneconomic even to maintain, and had relied on an unventilated assertion concerning the economic downturn. The central issues were whether the inspector had given adequate reasons and whether the decision-making process was procedurally fair.

1. The claim succeeded on ground 1. The inspector’s decision was liable to be quashed because paragraph 10 of the decision letter failed to grapple with the claimant’s substantial case that the existing buildings were uneconomic to maintain.
2. Under section 70(1) of the Town and Country Planning Act 1990, an inspector must have regard to the statutory development plan and material considerations. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the proposal must be determined in accordance with the development plan unless material considerations indicate otherwise. The inspector must also give proper, intelligible and adequate reasons addressing each substantial point raised by the parties.
3. The evidence distinguished three matters: the viability of maintaining the existing buildings, the cost of refurbishment, and the cost of demolition and redevelopment. The inspector dealt with refurbishment and redevelopment but treated the case as if there were no evidence about a lower-cost maintenance option. That was wrong. The maintenance case was clearly advanced in the original grounds and repeated in the response to the local authority.
4. The omission was material. If the estate was not viable in its existing condition, that could significantly affect the assessment of whether it would continue to serve as an employment site. The court could not conclude under the Simplex GEE Holdings Ltd v Secretary of State for the Environment principle that the decision would necessarily have been the same.
5. Ground 2 failed. Applying the principles in Hopkins v Secretary of State to a written-representations appeal, an inspector should not rely on an issue that has not been ventilated without giving a reasonable opportunity to respond. The inspector was unwise to rely on his own understanding of the global economic downturn, but that did not materially affect the decision.
6. Costs were assessed in the claimant’s favour at £11,511.37 including VAT. Permission to appeal was refused.

The local planning authority refused planning permission. The inspector appointed by the Welsh Ministers dismissed the claimant’s section 78 appeal in a decision dated 30 September 2014. The claimant’s section 288 challenge succeeded on ground 1 in this court; ground 2 failed.