Old Sarum Airfield Ltd v Secretary of State for Housing Communities And Local Government

Where a proposal causes less than substantial harm to a designated heritage asset, the decision-maker must weigh that harm against the proposal’s public benefits. The decision-maker is not required to treat every claimed benefit as material, or to determine every contested topic that does not affect the outcome. A planning decision must give intelligible and adequate reasons on the principal important controversial issues, but need not address every issue explored during an inquiry. A challenge under section 288 of the Town and Country Planning Act 1990 is not a merits appeal: the weight given to material considerations is for the planning decision-maker unless irrationality is shown.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to challenge an inspector’s refusal of outline planning permission for mixed-use development at Old Sarum Airfield. The proposal included housing, employment and aviation-related uses, together with heritage, landscape, access and flying-activity measures.

The inspector found less than substantial harm to designated heritage assets. She identified public benefits, applied paragraph 196 of the National Planning Policy Framework, and concluded that the heritage harm and conflict with the development plan outweighed them. The claimant argued that further benefits had not been considered, that the reasons were inadequate, and that the decision was irrational and unfair.

1. Challenge dismissed. The court rejected the section 288 challenge. Permission to pursue the proposed irrationality and unfairness ground was refused.
2. Paragraph 196 of the National Planning Policy Framework required the inspector to weigh the less than substantial heritage harm against the public benefits of the proposal. The inspector identified ten benefits or categories of benefit and gave them considerable cumulative weight. She was entitled to conclude that claimed highway, road-safety, biodiversity and ecology matters did not constitute additional material public benefits. Cycleways, pathways and landscape measures had been considered. She was also entitled to take the claimant’s sustainability case at its highest and conclude that the heritage harm would nevertheless outweigh it.
3. The duty to give reasons, expressed in rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiry Procedure) (England) Rules 2000, concerns the reasons for the decision. A “main issue” must be a question whose answer materially contributes to the outcome at the decision stage. The duty does not extend to every topic discussed, or to issues which have ceased to affect the result. The inspector adequately explained why the heritage harm and development-plan conflict outweighed the benefits, including the treatment of noise controls, viability and deliverability.
4. The principles in South Bucks District Council v Porter (No 2) [2004] UKHL 33 and St Modwen Developments Ltd v SSCLG [2017] EWCA Civ 1643 require a flexible reading of planning decisions and prohibit merits review or hypercritical dissection. The weight given to planning considerations remained for the inspector. The proposed irrationality and unfairness ground added nothing beyond the rejected grounds.

The matter was a first-instance statutory challenge to an inspector’s decision dated 11 July 2019, following a section 78 planning inquiry. The High Court dismissed the challenge under section 288 of the Town and Country Planning Act 1990.