Reilly v Secretary of State for Communities and Local Government & Anor

On a challenge under Town and Country Planning Act 1990 section 288, the court reviews legality rather than the planning merits. The assessment of highway safety, and the weight given to it against competing considerations, are matters for the planning decision-maker. A challenge succeeds only for a recognised public law error, including irrationality or failure to consider relevant matters. An Inspector may assess highway risks by reference to the likelihood of driver error and likely accidents, because a safety assessment must reflect how a proposal will operate in practice. A previous Inspector’s different conclusion does not determine a later appeal where the later decision-maker has considered it and has additional evidence. Where substantial evidence and a site inspection support the decision, a broad range of rational planning judgments is permissible.

The claimant, an elderly Irish Traveller, challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of conjoined planning and enforcement notice appeals. The appeals concerned the continued residential use of a caravan site and the removal of a condition requiring the use to cease after a temporary permission.

The Inspector allowed the enforcement appeal only to extend the compliance period. He dismissed the appeal against refusal of planning permission and the ground (a) enforcement appeal, treating highway safety as carrying the fullest possible weight. The central questions were whether the Inspector had unlawfully considered risks arising from driver error and whether the weight given to highway safety was irrational.

1. The application was dismissed. The claimant failed to establish an error of law in the Inspector’s decision.
2. Under section 288 of the Town and Country Planning Act 1990, the court applies ordinary judicial review principles. It does not reconsider the planning merits. The evaluation of evidence, the making of planning judgments and the weight given to competing factors fall primarily to the Inspector. Where detailed evidence, representations and a site inspection are available, there is usually a broad range of rational outcomes, making a Wednesbury challenge particularly difficult.
3. The Inspector was entitled to consider the circumstances of the fatal collision when assessing the continuing risk created by the access. A highway safety assessment must take account of the likelihood of driver error and likely accidents; excluding such risks would detach the planning judgment from the proposal’s practical operation. The identified danger also existed independently of the particular driver’s error, given the character of the road, restricted visibility and the increased traffic generated by the site.
4. The Inspector had considered the previous decision, but it was not determinative. The later inquiry contained further evidence, including evidence about the fatal accident and a night-time site inspection. The Inspector was entitled to find a clear conflict with highway safety policies and to attach the fullest possible weight to highway safety, notwithstanding the residents’ personal circumstances, possible lack of alternative accommodation, effects on education and health, human rights and the need for Gypsy and Traveller pitches.
5. The Inspector’s conclusion that highway safety could not be outweighed by those considerations was rational and within the legitimate scope of his planning judgment. The enforcement compliance periods were extended as stated in the decision, but the planning appeal and ground (a) enforcement appeal remained dismissed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The application to quash the Inspector’s decision dated 17 December 2014 was dismissed.