Forestry Commission & Anor v The Secretary of State for Communities and Local Government & Ors

In a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the planning merits. A development plan must be considered as a whole, with the statutory priority required by section 38(6) of the Planning and Compulsory Purchase Act 2004. Where a policy imposes particular restrictions on Green Belt development, compliance with separate criteria applicable in open countryside does not necessarily establish compliance with the policy or amount to a benefit in the planning balance. The decision-maker may treat compliance with criteria designed to avoid or minimise harm as neutral, provided the relevant matters were considered and the approach was rational. A decision letter need address the principal controversial issues, and is read fairly and as a whole.

The Forestry Commission and Forest Holidays applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s refusal of planning permission for a visitor centre and 70 holiday cabins at Delamere Forest. The Secretary of State had called in the application under section 77 and accepted the Inspector’s recommendation. The claim alleged misinterpretation and misapplication of Local Plan Policy RT9, failure to give weight to compliance with its criteria, failure to consider the development plan properly, and inadequate reasons. The central issues were whether the Green Belt restrictions in paragraph 1 of Policy RT9 were decisive despite compliance with paragraph 2 criteria, and whether the decision letter lawfully explained the planning judgment.

1. Claim dismissed. The claimants had not established an error of law, irrationality, failure to consider relevant matters, procedural impropriety or substantial prejudice.
2. A section 288 challenge engages ordinary judicial review principles. The exercise of planning judgment and the weighing of considerations remain for the decision-maker: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26 and Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74.
3. Policy RT9 made special provision for the Green Belt. Chalet development was inappropriate development there and required very special circumstances sufficient to outweigh Green Belt and other harm. Paragraph 2 applied to development in the open countryside, but satisfying its criteria was not sufficient to comply with RT9 in a Green Belt case. The more stringent paragraph 1 requirements had to be met.
4. The weight given to paragraph 2 criteria was a matter of planning judgment and could vary with the facts. The decision-maker was entitled to treat accessibility, layout and design criteria as neutral where they avoided or minimised harm rather than conferred a positive benefit. The relevant matters had nevertheless been considered.
5. Section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990, required assessment of conformity with the development plan as a whole. It did not require examination of every way in which each policy affected the proposal. The Secretary of State was entitled to conclude that the proposal conflicted with the Green Belt and ASCV policies, irrespective of paragraph 2 compliance.
6. The decision letter adequately addressed the principal controversial issues. It was to be read fairly, in good faith and as a whole, by an informed reader: South Lakeland v Secretary of State for the Environment [1992] 2 AC 141; Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263; and South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953. The omission of one benefit from the final summary was a drafting oversight, not an error in reasoning.

First-instance judicial review claim under section 288 of the Town and Country Planning Act 1990. The application to quash the Secretary of State’s decision was dismissed.