Turner v Secretary of State for Communities and Local Government & Ors

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, rationality, relevant considerations and procedural propriety, but does not re-determine planning merits. The interpretation of national planning policy is a question of law, while applying policy and weighing competing considerations are matters of planning judgment. Under paragraph 89 of the NPPF, the exception for redevelopment of previously developed land requires comparison of the proposed development’s impact on Green Belt openness and its purposes with that of the existing development. A volumetric comparison is not necessarily appropriate. An Inspector’s decision letter must be read fairly and as a whole, and reasons are adequate if they explain the conclusions on the principal controversial issues without addressing every argument.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s dismissal of his appeal against refusal of planning permission by East Dorset District Council.

The proposal was to replace a mobile home and commercial vehicle-storage yard in the Green Belt and countryside with a three-bedroom bungalow and residential curtilage. The Inspector concluded that the proposal would harm Green Belt openness, did not fall within the paragraph 89 exception for redevelopment of previously developed land, was not sustainable because of its isolated rural location, and was not justified by very special circumstances. The issues were whether the Inspector had unlawfully applied paragraph 89, confused openness with visual impact, or failed to give adequate reasons on sustainability.

1. The application was dismissed. The claimant had not established any ground for quashing the Secretary of State’s decision under section 288 of the Town and Country Planning Act 1990.
2. The Inspector correctly treated paragraph 89 of the NPPF as concerned with the construction of new buildings and correctly identified the final bullet-point exception as the relevant provision. The site was previously developed land, and the Inspector was entitled to consider whether the proposal was limited infilling.
3. The paragraph 89 bullet-point 6 test required comparison of the proposed development’s impact on Green Belt openness and the purposes in paragraph 80 with the impact of the existing development. The test was not simply a comparison of relative volume. The permanent bungalow could have a greater impact on openness than a mobile home and movable vehicles because it would occupy a fixed position and obstruct views through its height, façade and roof.
4. “Openness” meant freedom from development, rather than merely freedom from operational development. The Inspector’s narrower formulation was a slip, but it did not materially affect his reasoning. His assessment of openness was a planning judgment, particularly in light of his site visit. He had not unlawfully conflated openness with visual impact; visual impact was considered separately.
5. The Inspector gave adequate and intelligible reasons on sustainability. He identified the economic, social and environmental aspects of sustainable development, considered the relevant transport and rural-housing policies, and explained why the isolated location and likely car dependency meant that the proposal did not comply with the Framework. He was nevertheless entitled to give the resulting harm limited weight because residential occupation and associated car use already existed on the site. The claimant had not shown substantial prejudice caused by any alleged inadequacy of reasons.

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.