Budhdeo & Anor v Secretary of State for Communities and Local Government & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, the court will not review the planning merits of an inspector’s decision. The inspector must give intelligible and adequate reasons for the principal controversial issues, but need not address every argument or material consideration. Under paragraph 89 of the National Planning Policy Framework, size is the primary consideration when deciding whether a replacement dwelling is materially larger, although bulk, height, mass and design may provide an important safety check. Limited loss of Green Belt openness may attract significant weight. Very special circumstances require the harm from inappropriateness and any other harm to be clearly outweighed by other considerations.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to challenge an inspector’s dismissal of two section 78 planning appeals. The proposals concerned alteration and extension of a dwelling in the Metropolitan Green Belt, or its demolition and replacement by a dwelling of the same dimensions and appearance. The inspector found both proposals inappropriate development, materially larger or disproportionate, and harmful to openness. He found no material harm to the conservation area or neighbouring living conditions, but concluded that very special circumstances did not exist. The claimants challenged the inspector’s approach to material size, openness, Green Belt harm and the balancing exercise.

1. The proposed amendments were allowed because the first defendant was not taken by surprise and could deal with them without an adjournment.
2. The challenge failed. Applying Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) and Newsmith v Secretary of State [2001] EWHC Admin 74, the court held that a section 288 application is not a review of planning merits. The inspector’s decision must be read flexibly and need only give intelligible and adequate reasons on the principal important controversial issues. Planning weight and judgment remain matters for the decision-maker unless the conclusion is irrational.
3. The inspector lawfully applied paragraph 89 of the National Planning Policy Framework. Floor space was the primary indicator of size, but the inspector also considered the materially increased bulk, roof, height, garage and swimming-pool building. His consideration of those matters amounted to the required flexibility or safety check identified in R (on the application of Heath and Hampstead Society) v Camden LBC [2008] EWCA Civ 193. The 57 per cent increase in floor space justified the conclusion that the replacement was materially larger and the extension disproportionate.
4. The inspector was entitled to find that even a limited loss of openness was harmful and deserved significant weight. He considered the net increase in built development and the limited visibility of much of the proposal. That was a lawful planning judgment under paragraphs 79 and 88 of the National Planning Policy Framework.
5. The inspector considered both definitional harm from inappropriate development and actual harm to openness. He was not required to address each of the five Green Belt purposes separately. Applying the formulation in Wychavon District Council v Secretary of State [2008] EWCA Civ 692, reflected in Doncaster NBC v Secretary of State [2002] EWHC 808 and discussed in Atkins v Tandridge District Council [2015] EWHC 1947 (Admin), he lawfully balanced the harm against the benefits and found that the latter did not clearly outweigh the former.
6. The application was dismissed.

The claim was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision dated 3 August 2015 dismissing conjoined section 78 planning appeals and refusing planning permission. The High Court dismissed the challenge.