John Murtagh v Secretary of State for Levelling up, Housing and Communities

Planning decision reasons must intelligibly explain the conclusions reached on the principal controversial issues. An inspector need not mention every policy or argument, but must address a material issue specifically raised in the evidence. This includes the suitability of an existing telecommunications mast where it bears on the justification for a proposed new mast. A separate statutory tree-protection regime does not remove the need to consider a relevant planning policy concerning protected trees. Where an omission creates a real possibility that the decision might have been different, the decision may be quashed and remitted.

A local planning authority refused prior approval for a proposed 15-metre 5G mast and associated cabinets under Schedule 2, Part 16, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015. The Secretary of State’s inspector allowed the developer’s appeal, accepting that the public benefits outweighed harm to a conservation area and a locally listed building.

The claimant, who lived in the affected building, sought statutory review under section 288 of the Town and Country Planning Act 1990. The issues were whether the inspector had adequately considered a nearby existing mast and potential damage to a protected yew tree.

1. Decision quashed and remitted. Both grounds of review were made out. The inspector’s decision was quashed and the appeal was remitted for redetermination.
2. Adequacy of reasons. Decision letters must be construed reasonably and flexibly. An inspector need not rehearse every argument or refer expressly to every material consideration. The reasons must nevertheless be intelligible and adequate, explaining why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues.
3. Existing mast. The nearby existing mast was specifically raised and was material to whether the proposed mast was justified at that site. The inspector’s brief reference to having noted an existing mast did not demonstrate that its suitability had been considered. His reasoning about alternative sites also left a real doubt as to how the proposed location had been justified.
4. Protected tree. The claimant’s objection sufficiently raised the potential effect of the mast and cabinets on the roots of the protected yew. Although the Tree Preservation Order regime applied, local policy DM10 remained a material planning consideration. The inspector should have addressed the issue, including by explaining why it could not justify dismissing the appeal.
5. Materiality. The omission concerning the tree was unlawful because the court could not conclude that the decision would inevitably have been the same had the issue been considered.

1. Secretary of State’s inspector: allowed the developer’s section 78 appeal against refusal of prior approval.
2. High Court (Planning Court): quashed the inspector’s decision on statutory review and remitted the appeal for redetermination.