Kensworth Builders Ltd v Secretary of State for Communities and Local Government & Anor

In a planning appeal, an Inspector’s decision must be read reasonably and flexibly. Reasons need address the main issues, but need not rehearse every argument or item of evidence. The court must not substitute its own planning judgment for that of the decision-maker.

A fallback use is material only where there is more than a theoretical, or real, possibility that the alternative development will occur. A listed building decision may take account of a proposed change of use where that use forms part of the building’s historic interest and significance. An alleged mistake of fact must concern an established, objectively verifiable fact and must have materially affected the reasoning.

This was a section 288 appeal against an Inspector’s decision dated 23 September 2015. The Inspector had dismissed conjoined appeals concerning the proposed conversion of a Grade II listed former public house into a dwelling, listed building consent for associated internal works, and the construction of three houses on adjoining land.

The claimant challenged the decision on five grounds: the alleged historic origin of the building as two houses; reference to the name Bedford Arms; failure to consider a fallback use under the GDPO 2015; consideration of change of use in assessing listed building harm; and the finding that continued use as a public house was viable.

1. The appeal was dismissed. The Inspector’s decision was lawful and the claimant’s five grounds failed.
2. Decision letters in planning cases are to be construed reasonably and flexibly. The Inspector need address the main issues and give reasons sufficient to avoid substantial doubt that the law was misunderstood or that the decision was irrational. The weight given to material considerations remains a matter for the planning decision-maker.
3. The alleged origin of the public house as two semi-detached houses was unsupported by reliable evidence. It was not an established and objectively verifiable fact. In any event, the Inspector was entitled to regard the building’s use as a public house, together with its associated layout and fittings, as part of its special architectural and historic interest. The alleged origin was therefore immaterial.
4. The reference to the Bedford Arms taking its name from Bedford was introductory and did not form a determinative part of the reasoning. The observation concerning the historic coaching route was, at most, a further supporting reason.
5. The fallback argument was not squarely advanced before the Inspector. In any event, a fallback use is material only where there is more than a theoretical possibility, or a real possibility, that the alternative development will occur. No evidence established such a possibility under the GDPO 2015.
6. Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 identified the threshold for listed building consent. Under section 16, the Inspector was entitled to have regard not only to the physical internal works but also to the proposed change of use, because the public-house use and its associated layout and trappings formed part of the building’s heritage significance.
7. The Inspector had considered the evidence on viability in the round. He was not required to refer expressly to every item of evidence, including the rent-free period, and was entitled to prefer the direct evidence of the former tenants.

This was a first-instance section 288 appeal from the Inspector’s decision dated 23 September 2015. No citation for the Inspector’s decision is stated in the judgment.