Cheshire East Council v Secretary of State for Communities And Local Government

In a challenge under Town and Country Planning Act 1990 section 288, the court reviews legality, not the planning merits. A planning decision must be read fairly and as a whole, in a straightforward manner, without excessive legalism. The decision-maker must recognise the statutory priority of the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004, but retains responsibility for interpreting the plan, assessing compliance, identifying material considerations and weighing them. The National Planning Policy Framework is a material consideration and does not displace that statutory scheme. A neighbourhood plan has no enhanced statutory status under paragraph 198 of the Framework. Adequate reasons need address the principal controversial issues and explain the result, but need not answer every argument or refer expressly to every relevant policy.

The local planning authority challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision granting permission for ten dwellings on agricultural land in open countryside at Dunkirk Farm Paddock. The authority alleged that the Inspector had failed to take account of conflict with saved Local Plan policy PS8, Local Plan Strategy policy PG5 and Brereton Neighbourhood Plan policy HOU1, and had failed to give adequate reasons.

The Inspector had identified localised landscape harm and conflict with the development plan, but treated the provision of market and affordable housing as material benefits. The central issues were whether he had lawfully applied section 38(6) of the Planning and Compulsory Purchase Act 2004, considered paragraph 198 of the Framework, and adequately explained his planning balance.

1. Application dismissed. The claimant had not shown that the Inspector acted outside his powers, misdirected himself in law, failed to consider a material consideration, acted irrationally or committed procedural impropriety.
2. A section 288 challenge is concerned with legality rather than a review of planning merits. The exercise of planning judgment and the weight given to competing considerations remain matters for the decision-maker. The court must respect the expertise of specialist planning inspectors and avoid over-legalising policy analysis.
3. The decision letter was to be read fairly, in good faith and as a whole, in a straightforward manner by an informed reader. It was not necessary for the Inspector to rehearse every argument or mention every policy expressly. The relevant question was whether the letter disclosed what had been decided and why, without substantial doubt that the decision-maker had misunderstood the law or policy.
4. Section 38(6) required the Inspector to recognise the priority of the development plan, establish whether the proposal accorded with the plan as a whole, identify other material considerations and decide whether they indicated a different outcome. It did not prescribe a rigid two-stage process or dictate the weight to be given to the plan or other considerations. The Inspector had done this by identifying conflict with the countryside and settlement-boundary policies, then weighing the resulting harm against the housing benefits.
5. Paragraph 198 of the Framework did not give neighbourhood plans enhanced status or modify section 38(6). Permission could therefore be granted for a proposal conflicting with a neighbourhood plan where material considerations indicated that course. The Inspector’s failure to reproduce paragraph 198 did not establish that he had ignored it.
6. The Inspector’s reasons were adequate and intelligible. His findings on landscape harm, development-plan conflict, housing need and affordable housing were properly capable of forming the basis of his planning balance and conclusion.

A Deputy High Court Judge refused permission to apply for statutory review and certified the claim totally without merit. The Court of Appeal subsequently granted permission on the papers. The High Court then dismissed the section 288 claim.