Satnam Millenium Ltd v Secretary of State for Housing, Communities And Local Government

In a planning challenge involving the National Planning Policy Framework tilted balance, a developer must provide a sound and reliable transport assessment before the decision-maker can determine whether highway impacts are unacceptable or severe. Paragraphs 109 and 111 operate together; inadequate evidence cannot require the authority to prove severe harm.

Deliverability is generally not a prerequisite to planning permission. It may be material where implementation affects the planning merits, but inability to implement a proposal cannot itself count against permission where the same implementation failure would also prevent the alleged benefits and adverse impacts from arising.

A criminal standard of proof is inappropriate in planning inquiries, although a precautionary judgment based on a significant risk of serious harm may be lawful. Apparent bias is assessed by asking whether, on all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of its planning appeal. The proposal comprised a residential neighbourhood of up to 1,200 dwellings and associated facilities in Warrington.

The Inspector identified concerns about highway and air-quality evidence, deliverability because the claimant did not control part of the site and lacked firm bus-operator commitment, and the effect on the character of the area. The Secretary of State adopted the Inspector’s recommendation and dismissed the appeal.

The claimant alleged errors concerning paragraph 11(d) of the Framework, deliverability, the standard of proof, and apparent bias arising from the Inspector’s conduct of the inquiry and site visit. The central issues were whether those matters rendered the decision unlawful.

1. Grounds 1 and 2 allowed. The decision letter was quashed. Grounds 3 and 4 were dismissed.
2. Paragraphs 109 and 111 of the Framework were compatible with the development plan policies. Paragraph 111 required the developer to provide a sufficiently satisfactory transport assessment to enable the likely impact to be assessed. If the assessment was too deficient to permit a reliable judgment, paragraph 109 could not assist the developer by requiring the authority to prove unacceptable or severe impact. The Inspector and Secretary of State were entitled to adopt a precautionary approach where the traffic data and modelling were unreliable and the surrounding network was already congested.
3. The Secretary of State nevertheless erred in treating lack of deliverability as an adverse factor while allowing for the adverse impacts of the development but excluding its benefits. If the scheme could not be implemented, the housing benefits would not arise, but neither would the associated impacts. The reasoning in the decision letter was irrational, or at least fundamentally unclear. The Inspector’s assumption that the scheme was deliverable when assessing benefits could not cure that defect.
4. In general, whether a proposal could be implemented was irrelevant to deciding whether permission should be granted. It could be material where implementation difficulties affected the planning merits, for example where sites competed to meet a single need, or where partial implementation would materially alter the planning balance. No such circumstance existed here. The Inspector’s factual conclusions that the scheme was not deliverable fell within the permissible range of planning judgment, but that conclusion was not a material consideration weighing against permission on the reasoning given.
5. The phrase “beyond reasonable doubt” was inappropriate in a planning inquiry. Planning judgments concern evaluation and forecasts that are ordinarily incapable of proof to a criminal standard. The Inspector’s use of that phrase did not, however, invalidate the decision because the reasoning read as a whole conveyed a lawful precautionary approach. The developer had to provide clear, reliable and soundly based evidence, and a significant risk of serious harm could properly justify refusal.
6. The applicable apparent-bias test was whether, having ascertained all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias: Porter v Magill [2001] UKHL 67; In re Medicaments and Related Categories of Goods (No 2) [2001] 1 WLR 700. Informality, courtesy, procedural conversations, humour and the Inspector’s assistance to local residents did not, individually or cumulatively, satisfy that test. A breach of inquiry guidance would be relevant but was not itself sufficient.
7. The court assessed the decision letter itself. The Ministerial submission could not be used to cure deficiencies in the published decision, although it was considered on the apparent-bias issue. Had apparent bias been established, the decision would have been quashed because the Secretary of State’s later review could not remove the taint from the Inspector’s report.

This was a first-instance application under section 288 of the Town and Country Planning Act 1990 challenging the Secretary of State’s decision to dismiss the planning appeal. The application was allowed on grounds 1 and 2 and dismissed on grounds 3 and 4.