Visao Ltd v The Secretary of State for Housing, Communities And Local Government

An inspector must determine a planning appeal by reference to the material considerations and plans properly placed before him. A failure to consider a plan expressly relied upon by the appellant is unlawful where it may have affected the outcome. Post-decision evidence cannot ordinarily add matters said to have been considered but absent from the decision letter.

Reasons must explain the conclusions on the principal controversial issues and must not leave substantial doubt about legal error. Where a decision-maker departs from the view of a statutory consultee on a material issue, cogent and compelling reasons are required. Relief will not be withheld unless the court is satisfied that the same decision would have been reached despite the error.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of its appeal against refusal of planning permission for extensions to two dwellings and four additional dwellings.

The claimant relied on two grounds. First, it alleged that the inspector failed to determine the appeal by reference to Drawing 12A, which showed revised access arrangements. Secondly, it alleged that, if Drawing 12A had been considered, the inspector gave inadequate reasons for rejecting the highway authority’s view that the arrangements would overcome its concerns.

The central issues were whether the inspector had considered the correct access plan and, if not, whether the error materially prejudiced the claimant.

1. Ground 1 succeeded. The claimant had plainly requested that the appeal be determined on the basis of Drawing 12A. Reading the decision letter objectively, the inspector determined the access issue by reference to Drawing 10E. The dimensions described in the letter, and its footnote referring to Drawing 10E, were inconsistent with Drawing 12A.
2. The inspector’s witness statement could not cure the defect. The court should be cautious about post-decision evidence, particularly where it purports to establish matters taken into account rather than merely elucidating unclear reasons. Allowing such evidence would undermine the purpose of an appeal decision letter.
3. The failure was material. The highway authority had considered Drawing 12A and stated that its arrangements would, on balance, overcome the authority’s concerns. The difference between the drawings could therefore have affected the conclusion on safe access. If the inspector had decided that issue differently, the adverse matters in the planning balance would have changed. The court could not be satisfied that the same decision would necessarily have been reached.
4. Ground 2 also succeeded. The highway authority’s view was highly material. Departure from it required cogent and compelling reasons. The decision letter did not refer expressly to that view and gave no adequate explanation for rejecting it. The claimant therefore suffered genuine and substantial prejudice because it could not understand what made the access proposal unacceptable or how to address the objection.
5. Permission to proceed was granted on both grounds. The application was allowed and the Secretary of State’s decision was quashed.

The judgment concerns a first-instance application under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision dated 30 August 2018.