Amstel Group Corporation v Secretary of State for Communities and Local Government & Anor

On a challenge under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not the merits or weight of planning considerations. A planning decision must be read fairly, as a whole, and without excessive legalism.

Where development causes harm to listed buildings or their settings, the statutory duties in the Planning (Listed Buildings and Conservation Areas) Act 1990 require that the desirability of preservation receive considerable importance and weight. Less than substantial harm remains capable of carrying significant weight under NPPF paragraph 134.

A planning obligation which fails the statutory tests in regulation 122 of the Community Infrastructure Levy Regulations 2010 cannot be treated as a reason for granting permission. It may nevertheless be necessary to assess separately any wider benefits of the proposed development. Failure to do so is a material error.

The claimant sought permission under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal against refusal of planning permission for a large residential development at Sculthorpe, including a proposed primary school.

The inspector considered housing supply, sustainable development, designated heritage assets and infrastructure. He treated the school as an inducement which did not satisfy regulation 122 of the Community Infrastructure Levy Regulations 2010, and stated that he had not taken it into account. The claimant challenged the decision on several grounds, including failure to consider the school’s public benefits under NPPF paragraph 134.

1. Outcome. Permission was refused on Grounds 1, 2, 3, 5, 6 and 8. Ground 7 was withdrawn. Permission was granted on Ground 4, and the application under section 288 of the Town and Country Planning Act 1990 succeeded. The inspector’s decision was quashed.
2. A section 288 challenge is subject to ordinary judicial review principles. The court may intervene for legal misdirection, irrationality, failure to consider a material consideration or procedural impropriety, but not to review the planning merits or reweigh the evidence. Decision letters must be read fairly and as a whole, in a straightforward manner, by an informed reader.
3. The inspector had lawfully considered the economic, social and environmental dimensions of sustainable development, although he dealt with them under the other main issues rather than under a separate heading. The court would not interfere with his planning judgments on housing supply, infrastructure or affordable housing.
4. The inspector correctly applied the statutory heritage duties and NPPF paragraphs 132 to 134. Harm to listed buildings or their settings must receive considerable importance and weight. The assessment of the degree of harm and the ultimate planning balance remained matters of planning judgment. The inspector was entitled to conclude that the cumulative less than substantial harm was not outweighed by the public benefits.
5. The proposed school did not satisfy regulation 122(2) of the Community Infrastructure Levy Regulations 2010. It was not necessary to make the development acceptable in planning terms because additional school capacity could be provided by a financial contribution, and it was not fairly and reasonably related in scale and kind. The inspector was therefore entitled to exclude it as a reason for granting permission.
6. That exclusion did not remove the need to assess the school separately as a public benefit of the proposed development. The inspector considered the contribution towards additional school places but failed to weigh the benefits of the new school itself, including improved and enlarged facilities for existing and new pupils. The court could not assume that the result would have been the same, so the error was material.
7. The inspector’s doubts about the validity of the unilateral undertaking and his findings on affordable housing and population data did not disclose legally reviewable errors.