Malvern Hills District Council v The Secretary of State for Housing, Communities And Local Government & Anor

A planning inspector must take relevant public rights of way into account when assessing a development. However, the obstruction of a right of way may be immaterial to the planning merits of the building itself where separate statutory procedures govern diversion or removal of the obstruction. A challenge alleging policy misinterpretation must identify the wording relied on, the decision-maker’s interpretation and the departure from the correct meaning. A complaint that policy was applied incorrectly is ordinarily a rationality challenge. The court should respect the specialist decision-maker’s planning judgment and will intervene only where the conclusion is irrational.

A planning inspector granted retrospective planning permission for a storage building erected in open countryside to house a heritage steam crane used at an annual steam rally. The local planning authority challenged the decision under section 289 of the Town and Country Planning Act 1990.

The authority alleged that the inspector had failed to consider the obstruction of a public footpath, misinterpreted or misapplied a local tourism policy concerning greenfield land, and reached conclusions about alternative storage and transport without evidence or fairly giving the authority an opportunity to respond.

1. Appeal dismissed. The inspector had not erred in law.
2. The inspector expressly recognised that the building crossed the route of a public footpath. On a fair reading of the decision, he distinguished the obstruction itself from the planning merits of the building. His assessment of the building from public viewpoints showed that he had, in substance, considered the need to protect public rights of way under NPPF paragraph 98.
3. Planning permission did not authorise obstruction of the footpath. Any diversion had to be determined under the relevant procedures in the Highways Act 1980. If diversion to an equally convenient route proved unavailable, removal of the obstruction could be required under sections 137 and 137ZA.
4. The inspector had expressly referred to Policy SWDP 34 and had considered the possibility of alternative covered storage. The challenge did not identify the policy interpretation adopted or explain how it departed from the correct interpretation. Applying the approach in Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin), [2017] PTSR 408, the complaint was one of application rather than interpretation and was therefore subject to review on rationality grounds.
5. The inspector was entitled to reach planning judgments from the evidence before him. The evidence concerning the crane’s age, deterioration, difficulty of movement and the time sought to secure alternative storage provided a rational basis for concluding that covered storage was not readily available elsewhere. The authority had been able to address that issue before the inspector and was not entitled to a further opportunity merely because it had not anticipated the outcome. The court applied the expert-decision-maker approach in Suffolk Coastal District Council v Hopkins Homes Ltd [2017] 1 WLR 1865.

The claim was brought in the High Court under section 289 of the Town and Country Planning Act 1990 against the planning inspector’s decision of 6 March 2020. The High Court dismissed the appeal on all three grounds.