Snow v Secretary of State for Communities and Local Government

A challenge under section 288 of the Town and Country Planning Act 1990 concerns errors of law, not a rehearing of planning merits. An Inspector’s planning judgment is unlawful only where it contains an error of law, including a conclusion reaching the high threshold of irrationality. A claimant will rarely be permitted to advance a new argument that was not put to the Inspector, particularly where it would require further factual findings or planning judgment. The court may interpret a planning condition where necessary, but should not substitute its own planning assessment for that of the Inspector.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to challenge an Inspector’s decision dated 29 January 2014. The Inspector had dismissed an appeal against Mansfield District Council’s refusal to vary a planning condition governing the opening time of an indoor car boot sale. The claimant argued that the condition prohibited sales before 9.45 am but permitted members of the public to enter before that time. He also challenged the Inspector’s planning assessment of the benefits of an earlier opening and its effect on neighbouring residents.

1. The claim was dismissed. A section 288 challenge lies on grounds of law, including judicial-review grounds, and is not an opportunity to revisit the planning merits. Applying R (on the application of Newsmith Stainless Steel Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, the threshold for irrationality is especially difficult to satisfy where the decision involves expert fact-finding and a series of planning judgments.
2. The claimant’s proposed argument about the meaning of condition 1 had not been advanced before the Inspector or the Council. It was inappropriate to permit the argument in the section 288 proceedings. New material or a new argument should be admitted only in very rare cases, and ordinarily not where it would require further factual findings or planning judgment, matters for the Inspector rather than the court.
3. In any event, condition 1 properly prohibited admission of members of the public before 9.45 am. It permitted sellers to arrive earlier to set up their pitches, but did not permit public admission before the specified time.
4. The Inspector had considered the claimant’s reliance on the National Planning Policy Framework, local support, the previous trial period, and permissions at other sites. He balanced the commercial benefits of an earlier start against the amenity of nearby residents, including the need for some relief from Sunday morning noise and disturbance. His conclusion that the condition should not be varied was properly open to him.
5. The claimant’s disagreement with the Inspector’s assessment did not disclose an error of law. The claimant was ordered to pay the First Defendant’s costs, summarily assessed at £6,436, giving credit for £1,000 already paid.