BDW Trading Ltd (t/as David Wilson Homes (Central, Mercia and West Midlands)) v The Secretary of State for Communities and Local Government & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, a decision-maker must determine whether a proposal accords with the development plan as a whole, even where it conflicts with an individual policy. The issue is substantive, not formal. The decision-maker need not use prescribed words, but the decision must show that the statutory question was addressed. A planning inspector’s assessment of residential amenity is an evaluative planning judgment, informed by technical evidence and site conditions. Where a potential planning harm can properly be controlled by a condition, uncertainty about its delivery should not ordinarily be treated as an additional harm in the planning balance. Material failure to apply the correct development-plan presumption, or to deal lawfully with conditions, may justify quashing the decision.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal against refusal of planning permission for 114 dwellings in Staffordshire.

The inspector found that increased traffic would cause unacceptable noise and disturbance to neighbouring residents and that a suitable emergency access was uncertain. She concluded that the benefits did not outweigh the identified harm. The claimant challenged the decision on four grounds, principally that the inspector had failed to determine whether the proposal accorded with the development plan as a whole and had unlawfully treated emergency-access uncertainty as a planning harm.

1. The application was allowed and the inspector’s decision dated 24 October 2014 was quashed.
2. Although the proposal conflicted with Policy SP7(l) of the Stafford Plan, the inspector was required by section 38(6) of the Planning and Compulsory Purchase Act 2004 to decide whether it nevertheless accorded with the development plan as a whole. The development plan was up to date, and the applicable presumption under the National Planning Policy Framework depended on that determination. The inspector’s decision did not show that she had grappled with the issue. Her reference to the benefits not outweighing the harm was insufficient in the circumstances, particularly because the proposal otherwise complied with the plan and had significant benefits. The error was material.
3. The challenge to the inspector’s assessment of noise and disturbance failed. The inspector was entitled, and required, to consider the acoustic evidence together with her site visit and planning judgment. She could find that intermittent, close-range vehicle movements would materially reduce residential amenity, despite the absence of a material change in average decibel levels. That was an evaluative judgment for the planning decision-maker.
4. The inspector also erred in treating uncertainty about delivery of an emergency access as an additional factor weighing against the proposal. The highway authority sought an emergency-access condition, and suitable conditions could have required approval and implementation before occupation. Any distinct effect on public open space could be considered, but uncertainty capable of being addressed by condition was not, in the manner adopted, an additional planning harm.
5. The second ground added nothing to the first. It was unnecessary to determine whether the fourth ground was independently material because the first ground already required the decision to be quashed.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision dismissing the claimant’s planning appeal. The inspector’s decision of 24 October 2014 was quashed.