Cheshire East Borough Council v Secretary of State for Communities and Local Government

An inspector may find that development technically breaches a planning policy while concluding that the policy’s underlying aims and objectives are not materially compromised. That is not inherently irrational. The court reviews the interpretation of planning policy but leaves its application, weight and planning balance to the decision-maker unless there is legal error or irrationality. The statutory development-plan obligation and the presumption in favour of sustainable development under paragraph 14 of the National Planning Policy Framework operate together. An inspector may assess relevant policies individually and conduct an overall, holistic planning balance.

Harlequin (Wistaston) Ltd appealed against the claimant authority’s failure to determine an application for 150 dwellings. The Secretary of State’s inspector allowed the appeal and granted planning permission after a public inquiry.

The authority challenged the decision under section 288 of the Town and Country Planning Act. It alleged that the inspector misunderstood the meaning of valued landscape, reached irrational conclusions under Green Gap policy NE.4, and misapplied paragraph 14 of the National Planning Policy Framework. Two further grounds were abandoned. The central issues were whether the reasoning disclosed legal error or irrationality and whether the inspector lawfully combined paragraph 14 with the statutory development-plan duty.

1. Valued landscape. The inspector understood the distinction between a valued landscape and a designated landscape. The absence of a landscape designation was a factual matter, not the legal test. The inspector separately assessed landscape quality, scenic quality and perceptual aspects, considered the physical attributes relied upon, and was entitled to conclude that the site lacked the special qualities of a valued landscape. Ground 1 therefore failed.
2. Green Gap policy. Policy NE.4 imposed strict wording against development causing erosion of the physical gaps or adversely affecting landscape character. The inspector was entitled to find that the development breached the policy while also finding that the Green Gap would remain effective and its purposes would not be materially compromised. A technical breach and limited harm to the policy’s objectives are capable of coexistence. The findings were neither inconsistent nor irrational. Ground 4 failed.
3. Paragraph 14 and the development plan. The policy in paragraph 14 of the National Planning Policy Framework operates within, and does not modify, the statutory framework under section 38(6) of the Planning and Compulsory Purchase Act. An inspector may distinguish policies that are out of date from policies that remain up to date, assess their weight individually, and then undertake an overall planning balance. No prescribed form of reasoning is required, provided the inspector understands the issues, applies the policies lawfully and considers all material matters. The inspector’s approach was holistic and lawful. Ground 5 failed.
4. The late amendment introducing ground 5 was allowed because it caused no prejudice, although late new grounds were deprecated. The claim was dismissed. The claimant was ordered to pay the Secretary of State’s costs of £6,281.

This was a first-instance judicial review under section 288 of the Town and Country Planning Act. The challenged decision was the inspector’s decision allowing Harlequin (Wistaston) Ltd’s planning appeal and granting permission.