Gill v The Secretary of State for Communities and Local Government & Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the planning merits. An inspector’s decision letter is read flexibly and need address only the principal important controversial issues. A conclusion that a proposal conflicts with the development plan may be implied from the letter read as a whole; no particular formula is required. Development plan policies must be read together, but an inspector need not address policies that are irrelevant to the proposal or do not create a material tension. The interpretation of national planning policy is a legal question, while its application and the weight given to material considerations are matters of planning judgment. A previous appeal decision requires express consideration only where deciding the later case necessarily agrees or disagrees with a critical aspect of the earlier decision.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision letter dismissing his section 78 appeal. The appeal concerned the proposed change of use of an existing building from stables to offices on Green Belt land at Kensworth, Bedfordshire.

The claimant alleged failures to apply section 38(6) of the Planning and Compulsory Purchase Act 2004, misinterpretation of Green Belt policy in the National Planning Policy Framework, irrational conclusions on traffic and residential amenity, and failure to address an earlier appeal decision. The central question was whether the inspector’s decision was legally flawed or substantially prejudicial to the claimant.

1. Outcome. The claim was dismissed. The inspector’s decision letter was intelligible and adequate and disclosed no error of law.
2. Development plan duty. Section 38(6) of the Planning and Compulsory Purchase Act 2004 does not require an express statement that a proposal complies or conflicts with the development plan. The conclusion may be implied from a fair reading of the decision letter. Here, the inspector identified the Local Plan Review as the development plan, found conflict with Policies BE8 and NE3, applied the Green Belt policies in the NPPF, and concluded that the proposal was inappropriate development. The relevant policies had to be read as a whole, but the policies relied upon by the claimant were either irrelevant, more restrictive than the NPPF, or did not create a material tension requiring resolution.
3. Green Belt policy. Paragraph 89 of the NPPF was not engaged because the proposal did not involve construction of a new building. The inspector was entitled to find that the commercial office use would represent encroachment of an urban-type use into the countryside and would conflict with a Green Belt purpose. That finding meant that the exceptions in paragraphs 89 and 90 did not apply. The inspector was not required to consider conditions controlling land around the building because his conclusion concerned the nature of the proposed use.
4. Planning judgment. The assessment of traffic, noise and disturbance, and whether the resulting effect on residential amenity was unacceptable, involved planning judgment. There was sufficient material before the inspector to reach that conclusion. The court could not substitute its own view for his.
5. Consistency. The earlier appeal concerned a new dwelling in a different location, whereas the present proposal concerned retention and change of use of an existing building. The difference was sufficient to mean that the inspector was not necessarily agreeing or disagreeing with a critical aspect of the earlier decision. He was therefore not obliged to refer to it expressly.

The claim was brought in the High Court under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s inspector’s decision dismissing a section 78 planning appeal. The judgment describes the inspector’s decision but gives no separate citation for it.