Thame Town Council v Secretary of State for Housing, Communities And Local Government & Ors

A statutory review under Town and Country Planning Act 1990 is concerned with legality, not the merits of the planning judgment. The court must distinguish interpretation of planning policy, which is legally reviewable, from the weight assigned to material considerations, which ordinarily falls to the decision-maker.

A fallback development may be a material consideration where there is a real prospect of implementation. It need not be probable, and no fixed evidential formula applies. A decision-maker may give it significant weight and conclude that it outweighs conflict with the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004. Reasons need address the principal important controversial issues, but need not respond expressly to every submission or material consideration.

The claimant, a parish authority, brought a statutory review under section 288 of the Town and Country Planning Act 1990 challenging the Secretary of State’s decision to allow an appeal and grant planning permission for redevelopment of a vacant employment site.

The Inspector found that the proposed redevelopment conflicted with employment-land policies because the whole site had not been marketed. He nevertheless treated an extant prior approval for conversion of the office building to residential flats as a material fallback consideration. He found a real possibility that the conversion would proceed if permission for the redevelopment were refused, and gave that consideration significant weight.

The claimant alleged policy error, failure to consider material considerations, irrationality and inadequate reasons. The central issue was whether the Inspector lawfully treated the fallback scheme as capable of outweighing the development-plan conflict.

1. The claim was dismissed. The Inspector’s decision was within the scope of lawful planning judgment.
2. Under section 288 of the Town and Country Planning Act 1990, the court may intervene for legal misdirection, irrationality, failure to consider relevant matters or procedural impropriety. It must not reassess planning merits or substitute its own view of the weight to be given to competing considerations. The distinction between policy interpretation and policy application was material.
3. The Inspector correctly found that the proposal conflicted with Policy E6 of the South Oxfordshire Core Strategy and Policy WS12 of the Thame Neighbourhood Plan. The prior approval was not used to decide whether the whole employment site was economically viable. It was considered at the later stage under section 38(6) of the Planning and Compulsory Purchase Act 2004, when assessing whether material considerations indicated that permission should nevertheless be granted.
4. The prior approval was a lawful fallback consideration. The Inspector was entitled to find a real possibility that the office conversion would proceed if the redevelopment permission were refused. A real prospect need not be probable or likely. The assessment is fact-specific and remains a matter of planning judgment. The office conversion would remove employment use from part of the site, while the separately marketed warehouse had been shown to be unviable in isolation.
5. The Inspector was entitled to give the fallback significant weight. If permission were refused, the likely consequence was implementation of the office conversion, leaving only a vacant and unviable warehouse. Refusal would therefore achieve little in preserving employment use while preventing the proposed mixed-use development.
6. The reasons were intelligible and adequate. Read fairly, as a whole and by an informed reader, the decision letter showed that the Inspector had considered the claimant’s submissions concerning marketing, employment land, site viability, loss of jobs and the proposed conversion. He was not required to answer every point expressly, particularly where the matters were not principal controversial issues.