Royal Borough of Kensington & Chelsea, R (on the application of) v Secretary of State for Communities & Local Government & Anor

When a planning proposal conflicts with development-plan policy, that conflict is not necessarily decisive. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must identify the conflict and weigh it against other material considerations.

An inspector may rely on case-specific evidence, including an extant permission as a realistic fallback position and a construction traffic management plan, when assessing the likely effects of basement development. The weight given to policy criteria and competing considerations is generally a matter of planning judgment. An inspector need not address every submission or appeal decision expressly, provided the principal controversial issues are considered and the reasoning is intelligible.

The claimant local authority challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal against refusal of planning permission. The permission concerned excavation of a three-storey basement beneath a residential property and its garden.

The Inspector found conflict with criteria of Core Strategy Policy CL7 concerning the extent, number of storeys and depth of basement development. He nevertheless considered that the conflict was outweighed by the existing two-storey permission, the absence of demonstrated additional disturbance, and the ability to control construction effects through conditions and a construction traffic management plan.

The central issues were whether the Inspector had misunderstood Policy CL7, misapplied section 38(6) of the Planning and Compulsory Purchase Act 2004, and acted irrationally in treating construction impacts as capable of management.

1. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £14,886.
2. The Inspector correctly identified conflict between the proposal and criteria a, b and c of Policy CL7. That conflict was not necessarily sufficient by itself to justify refusal. Section 38(6) required the Inspector to consider other material considerations and weigh them against the policy conflict.
3. The extant permission for a two-storey basement was a realistic fallback position. The Inspector was entitled to compare the permitted and proposed schemes and to accept the appellant’s site-specific evidence that the additional storey would not materially alter the construction programme, techniques, vehicles, sequence of works or disturbance.
4. The Inspector was entitled to conclude that the additional disturbance could be managed through an agreed construction traffic management plan. The local authority had provided no site-specific evidence requiring a different conclusion. The assessment was a matter of planning judgment and was not irrational.
5. The Inspector had regard to the examining Inspector’s report on Policy CL7. That report addressed general evidence concerning the soundness of the policy, whereas the appeal Inspector considered evidence particular to the proposed scheme. There was no inconsistency requiring the appeal to succeed.
6. Criteria k and l of Policy CL7 were correctly understood. Criterion l concerned construction impacts generally, including impacts affecting nearby residents, and was not confined to impacts physically occurring on the site. A construction traffic management plan was therefore a relevant consideration and could be required by condition.
7. The Inspector was not required to refer expressly to every appeal decision or submission. His statement that he had considered the other decisions, read with the decision letter as a whole, sufficiently showed that he had addressed the principal controversial issues.

This was a first-instance statutory challenge in the Administrative Court to an Inspector’s decision allowing a planning appeal. No earlier court decision is stated in the judgment.