Nixon & Anor v Secretary of State for Housing, Communities and Local Government & Anor

In a planning challenge under section 288 of the Town and Country Planning Act 1990, the court must distinguish legal interpretation from planning judgment. Planning policies should be read objectively and coherently, but not with excessive legalism. An inspector need give intelligible and adequate reasons on the principal important controversial issues, rather than address every argument or item of evidence. The weight given to material considerations is for the decision-maker unless irrational. An inspector may address alternative factual categories together where that resolves the relevant planning issue, and need not determine a person’s precise status where the result is unaffected. A landscape may be valued because of physical attributes taking it out of the ordinary, even without designation, but whether it has that quality is ordinarily a matter of planning judgment.

The claimants challenged a planning inspector’s decision granting retrospective permission for ten pitches for mobile homes, touring caravans and utility buildings in Hertfordshire. The challenge concerned the interpretation of development-plan policies HOU9 and HOU10, the relevance of settlement location and land values, the need to determine whether the occupiers were nomadic, landscape and visual impact, and highway visibility splays. The Inspector had found the site sustainable, the development acceptable in character and appearance, and highway safety capable of being secured. She therefore found no conflict with the Development Plan and did not determine the occupiers’ status or need.

1. Outcome. Mrs Justice Lieven rejected all grounds of challenge and refused the application.
2. Under section 288 of the Town and Country Planning Act 1990, the court reviews legality, not planning merits. Decision letters are construed flexibly. Reasons must be intelligible and adequate on the principal important controversial issues, but need not address every argument or material consideration. The weight given to material considerations is for the decision-maker. These principles, stated in St Modwen Developments v Secretary of State [2017] EWCA Civ 1643, were applied together with the guidance in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
3. Development-plan policies must be interpreted objectively, but their application involves planning judgment. They should not be treated as statutes. The court rejected an argument that policies HOU9 and HOU10, read with GBR2 and DPS2, imposed an unstated requirement that traveller sites be within or adjacent to settlements. Supporting text could not add such a requirement: R (Cherkley) v Mole Valley DC [2014] EWCA Civ 567.
4. The Inspector lawfully considered the sustainability of the site by addressing both nomadic and non-nomadic occupiers. She did not need to decide the precise application of HOU9 or HOU10 where she had found conformity with the Development Plan. Nor did she need to determine local need, since lack of need did not itself justify refusal under paragraph 24(d) of the PPTS.
5. The Inspector lawfully concluded that the landscape was not a valued landscape under paragraph 170 of the NPPF. The relevant question was whether its physical attributes took it out of the ordinary, as explained in Forest of Dean DC v Secretary of State [2016] EWHC 2429. Her reasoning adequately addressed that issue.
6. The Inspector had seen the retrospective development and understood that landscaping would take time to mature. It was unnecessary to spell out those obvious matters. On highway safety, she rationally preferred representative 24-hour speed data and explained why the proposed visibility splay was adequate. No guidance required a precautionary or worst-case approach.

The judgment describes a challenge to a planning inspector’s decision dated 4 February 2020. The High Court rejected the challenge and refused the application.