Gallagher Properties Ltd v Secretary of State for Communities And Local Government

In a planning challenge, the decision-maker must recognise the priority of the development plan but may grant permission contrary to it where material considerations justify that result. The weight given to an out-of-date policy remains a matter for the decision-maker. A policy may properly retain weight where it is consistent with current national policy, even if its status as out of date is unresolved.

Reasons need address the principal important controversial issues and explain the decision intelligibly. They need not address every submission or evidential point. A challenge succeeds only where inadequate reasoning causes substantial prejudice. Expert evidence may properly be assessed against evidence from a non-expert with relevant local knowledge and experience.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of two appeals concerning proposed industrial estates at Waterside Park near junction 8 of the M20.

The site was a greenfield area outside the development boundary in the Maidstone Borough Local Plan. The inspector found significant harm to the landscape, the Kent Downs area of outstanding natural beauty and the setting of Leeds Castle and its listed park. She accepted that the development would provide substantial economic benefits and that there was a need for additional employment land.

The claimant challenged the inspector’s treatment of policy ENV28, the economic evidence, evidence concerning ecological effects and traffic, and the adequacy of her reasons. The central questions were whether the inspector had applied the statutory and national planning framework lawfully and whether any alleged defects caused substantial prejudice.

1. The application was dismissed. The claimant was ordered to pay the Secretary of State’s costs in the agreed sum of £9,290.

2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives priority to the development plan, but it does not impose a mechanical preference for it. Material considerations may justify a decision contrary to the plan. The assessment of the facts and the weight to be given to the plan and other considerations remain matters for the decision-maker, subject to the ordinary principles of judicial review, following City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447.

3. The inspector was entitled to treat ENV28 as carrying significant weight because its protection of the countryside was consistent with the environmental policies in the NPPF. In the circumstances, it was immaterial whether ENV28 was formally out of date or what precise weight it had, because the same environmental considerations had independent weight under the NPPF. The inspector had properly applied the paragraph 14 balancing exercise: the environmental harm significantly and demonstrably outweighed the economic and social benefits.

4. The approach was consistent with Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin). The weight given to an out-of-date policy is fact-sensitive, and the paragraph 14 presumption is not irrebuttable.

5. Reasons must be intelligible and adequate, addressing the principal important controversial issues and disclosing how issues of law and fact were resolved. They need not deal with every material consideration or submission. Applying South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, the inspector’s concise decision made the real issues and decisive basis clear. No substantial prejudice was shown.

6. The inspector was entitled to give weight to local evidence about possible ecological harm and traffic impacts, despite the absence of objections from expert or statutory bodies. Expert evidence is not capable of being contradicted only by expert evidence. The principle relied on from Shadwell Estates v Breckland District Council [2013] EWHC 12 (Admin) depended on that case’s facts and did not establish such a general rule.

7. Any error concerning subsidiary ecological or traffic matters could not have affected the result. The refusal rested essentially on the substantial harm to the AONB, countryside and listed heritage assets.

First instance judicial review application under section 288 of the Town and Country Planning Act 1990. The application was dismissed by the High Court (Administrative Court).