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

A challenge under Town and Country Planning Act 1990 succeeds only where the decision is outside the statutory powers or procedural error has caused serious prejudice. Planning judgments are for the decision-maker. The reviewing court must not rehear the evidence and may intervene for irrationality only in exceptional cases.

Inquiry rules expressed in mandatory terms must be followed, although breach does not necessarily require quashing if it caused no serious prejudice. Confidential viability material need not be disclosed unless relied on by the decision-maker. Apparent bias is assessed objectively by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimant challenged the Secretary of State’s decision to allow the redevelopment of the Shell Centre site on the South Bank. The claim concerned planning permission, conservation area consent and listed building consent for a mixed-use development.

The applications had been called in under Town and Country Planning Act 1990. An inspector conducted a public inquiry and recommended approval. The claimant alleged errors concerning economic viability and affordable housing, open space, heritage assets and loss of light. He also alleged breaches of the inquiry rules, procedural unfairness and apparent bias arising from the inspector’s conduct.

The central issues were whether the inspector had erred in law, acted irrationally or unfairly, or caused serious prejudice within section 288.

1. Outcome. The claim was dismissed. The claimant had not shown that the Secretary of State’s decision was outside the statutory powers or that procedural errors caused the serious prejudice required by section 288 of the Town and Country Planning Act 1990.
2. Viability and disclosure. The inspector was entitled to rely on the independently reviewed BNP Paribas appraisal. The confidential Quod report did not have to be disclosed because it had not been put before the decision-maker. Rule 13(6) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 required disclosure of documents relied on in evidence, not every document mentioned in a proof. The appraisal provided sufficient material to assess viability and affordable housing.
3. Planning judgment. The court must not rehear evidence or substitute its own assessment. The inspector’s conclusions on viability, heritage assets, design, light and open space involved planning judgment and were not irrational. Paragraph 74 of the National Planning Policy Framework was not to be applied mechanically. In an inner-city context, higher-quality and accessible replacement space could satisfy the policy despite a reduction in quantity where the existing space was largely unused.
4. Procedural rules. The inspector had no discretion to dispense with mandatory statements of case under Rule 6 or summaries required by Rule 13. Those requirements had been breached. However, the claimant received the substance of the developers’ case through proofs and summaries, and the breach caused no sufficient prejudice.
5. Apparent bias. Applying the objective test stated in Porter v Magill 2002 2 AC 387, the question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The inspector’s conduct was seriously unsatisfactory and created a justified concern about unfairness, but it did not establish apparent bias. The claimant’s case had nevertheless been considered, and the prejudice did not meet the statutory threshold.

Secretary of State: The applications were called in under section 77 of the Town and Country Planning Act 1990 and determined following a public inquiry conducted by an inspector. The Secretary of State accepted the inspector’s recommendations and allowed the development.

High Court (Administrative Court): The statutory challenge was dismissed.