Barry Thorpe-Smith & Anor v Secretary of State for Communities And Local Government & Anor

Fairness in a planning inquiry requires each party to have a reasonable opportunity to address material issues, including issues emerging during the hearing. An Inspector may assess disturbance by reference to particular events and local circumstances, even where average ambient noise levels show little change. Landscape magnitude is a matter of planning judgment, and an Inspector need not adopt an expert’s view if the reasoning is intelligible. Under paragraph 14 of the National Planning Policy Framework, the two exceptions to the presumption in favour of permission are alternative, not cumulative. Policies treated as out-of-date because of an insufficient housing land supply remain potentially material, and the weight given to them is a matter for the decision-maker. A development lacking the paragraph 14 presumption may nevertheless be permitted if other material considerations indicate that outcome.

The claimants challenged the Secretary of State’s dismissal of their section 78 appeal against refusal of outline planning permission for an assisted-living scheme in Ilfracombe. The proposed access would pass through a small residential cul-de-sac. The site was within the North Devon Coast Area of Outstanding Natural Beauty, a Coastal Preservation Area and a Heritage Coast.

The challenge alleged unfair treatment of noise evidence, unintelligible reasoning on disturbance, errors in assessing landscape character and appearance, and errors in applying the National Planning Policy Framework where the Council lacked a five-year housing land supply. The central questions were whether the Inspector had acted unlawfully in evaluating amenity and landscape effects and whether he had correctly applied paragraph 14 of the Framework.

1. Claim dismissed. The Inspector’s decision was not legally defective.
2. The inquiry had been conducted fairly. Although the Inspector’s concern about assessing overall noise impact emerged during cross-examination, the claimants’ expert had an opportunity to respond and the claimants could make submissions. Fairness requires a reasonable opportunity to address material issues, whether identified at the outset or emerging later, together with material prejudice if that opportunity was absent.
3. The Inspector’s assessment of disturbance was intelligible. Average ambient noise levels could mask the effect of particular noisy events in a quiet environment. He was entitled to consider the proportionate increase in traffic, different types of vehicles, and movements past rear gardens and side windows, notwithstanding his acceptance that average ambient noise levels were unlikely to increase significantly.
4. The Inspector had properly addressed landscape character rather than visual-receptor effects. He was entitled to exercise his own planning judgment on the magnitude of effect, to conclude that the development satisfied several characteristics of a large adverse effect, and to regard the proposed cut-and-fill bund as aggravating rather than mitigating the impact. His reasons adequately explained the conclusion of substantial harm.
5. Paragraph 14 of the National Planning Policy Framework provided two alternative exceptions to the presumption in favour of granting permission. Once the Inspector found that the second exception applied, he did not need to consider the first. His additional consideration of the first exception caused no prejudice.
6. The Inspector had not unlawfully imported paragraph 116 of the Framework. The possibility of achieving economic benefits outside designated areas was a relevant planning consideration, and the weight given to those benefits was a matter of judgment. Policies affecting the location of housing remained material despite being out-of-date, although their weight could be reduced.
7. A development outside the development plan and without the paragraph 14 presumption might still be permitted if other material considerations indicated that result. No such consideration was identified here.

The judgment states that the claimants appealed to the Secretary of State under section 78 of the Town and Country Planning Act 1990. The appointed Inspector dismissed the appeal in a decision letter dated 11 April 2016. The claim under section 288 of that Act was dismissed.