LDRA Ltd & Ors v Secretary of State for Communities And Local Government & Ors

In a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the planning merits or weight given to competing considerations. A planning decision must be read fairly, as a whole and from the standpoint of an informed reader.

The public sector equality duty requires a decision-maker to have due regard, in substance and with sufficient information, to the statutory needs of disabled persons. In a planning case, that includes the practical effect of a proposal on an existing amenity and whether disabled persons may lose access altogether, rather than merely experience inconvenience. Failure to undertake that assessment is an error of law. Procedural fairness also requires an inspector to understand and properly consider a materially identified alternative site.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal and granting planning permission for a marine operations and maintenance facility at Alabama Way, Birkenhead.

The challenge concerned vibration affecting a neighbouring business, access to the riverside by disabled persons, charter-boat access to a slipway, the permitted use of the building, and an alternative site at Seacombe Ferry and Kings Wharf. The central issues were whether the inspector had erred in law, failed to comply with the public sector equality duty, or acted unfairly in addressing the alternative site.

1. General approach. A section 288 challenge is governed by ordinary judicial review principles. The court may intervene for legal misdirection, irrationality, failure to consider relevant matters or procedural impropriety, but the exercise of planning judgment and the weight given to competing considerations remain for the decision-maker. The decision letter must be read fairly and as a whole.
2. Vibration. The inspector had considered the evidence on vibration, including the proposed monitoring and mitigation measures. His conclusion that construction vibration could be acceptably controlled disclosed no error of law.
3. Equality duty. The evidence showed that the existing car park provided a valued riverside amenity for disabled persons and their carers. The inspector treated the loss of access as a matter of reduced convenience, but failed to consider adequately the steep route from alternative parking, the absence of a comparable amenity, and the possibility that disabled persons might be unable to reach the riverside at all. There was no indication that he had addressed the statutory considerations in section 149 of the Equality Act 2010, including minimising disadvantages and meeting the different needs of disabled persons. The failure was substantive and amounted to an error of law.
4. Charter boats and B2 use. The inspector was entitled not to accept fully the evidence about the commercial consequences of losing access to the slipway, and no error of law was shown. The refusal to restrict the permission to B1 and B8 uses was also lawful because the application had consistently included B2 use and the imposed conditions protected neighbouring amenity.
5. Alternative site. The inspector misunderstood or failed to retain the identification of the Seacombe Ferry/Kings Wharf site during the site visit. He ought to have sought clarification or further material before dismissing the alternative as insufficiently identified. That failure was procedurally unfair and substantially prejudicial because a suitable alternative might have led to a different result.
6. The application succeeded on Grounds 2 and 5. The inspector’s decision was quashed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The inspector’s planning decision was quashed on Grounds 2 and 5.