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

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires a decision-maker to establish whether a proposal accords with the development plan as a whole, giving the plan statutory priority while weighing other material considerations. It does not impose a fixed two-stage process or require a formulaic express finding.

Where a dispute turns on a single directly applicable policy, and no other policy displaces or conflicts with it, a reasoned finding of conflict with that policy may demonstrate conflict with the plan as a whole. A decision letter must be read fairly in its factual and procedural context.

An uncertain emergency access may be treated as an additional shortcoming. Any error on that issue will not justify quashing where the result would inevitably have been the same.

The Secretary of State appealed against Hickinbottom J’s order allowing BDW Trading Ltd’s statutory challenge under section 288 of the Town and Country Planning Act 1990. The challenge concerned an inspector’s dismissal of BDW’s appeal against Stafford Borough Council’s refusal of permission for 114 dwellings at Stone.

The parties agreed that residential development was acceptable in principle, subject to compliance with other development-plan policies. Their sole live issue was whether additional traffic would cause unacceptable noise and disturbance to neighbouring residents. The inspector found conflict with Spatial Principle 7(l) of the newly adopted local plan and regarded uncertainty over emergency access as adding to the harm.

The central questions were whether the inspector had discharged the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004, and whether her treatment of emergency access involved a material legal error.

1. Appeal allowed. The inspector had lawfully dismissed the planning appeal. The judge’s order allowing the section 288 challenge was therefore set aside.

2. Section 38(6) requires a decision-maker to give the development plan priority and to decide whether the proposal accords with the plan as a whole. It does not prescribe a fixed two-stage method. The necessary conclusion may be apparent from a decision letter read fairly and in context; a formulaic express finding is unnecessary.

3. Here the parties had reduced the dispute to the noise and disturbance caused by traffic. Spatial Principle 7(l) was the single directly relevant development-plan policy. The inspector lawfully found significant harm to residential amenity and consequent conflict with that policy. No other policy displaced, overrode or conflicted with it. Her conclusion that the proposal was contrary to the plan as a whole was therefore clear, even though not separately expressed.

4. The inspector had considered the proposed emergency access. She was entitled to take account both of its effect on public open space and of doubt whether land outside the developer’s control would permit its implementation, notwithstanding the possible use of a negative condition. Those findings disclosed no legal error.

5. In any event, emergency access did not form part of the decisive balance. The harm to residents’ living conditions had already decisively outweighed the scheme’s benefits. The decision would inevitably have been the same, so any error would not have warranted quashing.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal: [2016] EWCA Civ 493.

• Administrative Court, Planning Court: Hickinbottom J had allowed BDW’s challenge under section 288 of the Town and Country Planning Act 1990: [2015] EWHC 886 (Admin).