Swindon Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anor

In a statutory challenge to a planning inspector’s decision, viability may qualify a development-plan requirement where the policy requires compliance “where appropriate” and “within the context of economic viability”. The decision-maker must interpret policy objectively, but its application and the weight given to viability are matters of planning judgment. A precedent concern is material only where evidence or specific circumstances require it to be addressed; generalised apprehension is insufficient. An inspector may answer generalised submissions on precedent in general terms. A court will not intervene for inadequate reasoning where the decision letter, read fairly and as a whole, makes the reasoning clear. Relief may be refused only where the outcome would inevitably have been the same without the error.

The claimant local planning authority adopted a plan allocating land for approximately 8,000 homes in new and expanded villages. A developer applied for permission for up to 220 dwellings and associated facilities at the northern part of Foxbridge. The authority refused permission because the proposal did not secure the infrastructure package required by policy.

On the developer’s appeal under section 78 of the Town and Country Planning Act 1990, the inspector granted permission. The authority sought statutory review under section 288, alleging misinterpretation of policy IN1, irrational treatment of precedent, and inadequate reasoning concerning a primary school. The central issues were whether viability justified reduced infrastructure and affordable-housing contributions, whether the decision might establish an impermissible precedent, and whether a primary school was necessary for the proposed development.

1. The claim for statutory review was dismissed on all three grounds.

2. Policy IN1 required development to contribute towards infrastructure costs “where appropriate” and “within the context of economic viability”. Those qualifications recognised that a requirement might be inappropriate or unviable in a particular case. Whether the requirement was appropriate was a matter of planning judgment. The policy did not impose a strict exceptional-circumstances test, nor did it require a minimum level of infrastructure contribution regardless of viability.

3. The inspector was entitled to conclude, on agreed viability evidence, that the developer’s contribution was policy-compliant despite being substantially below the authority’s calculated infrastructure costs. The alleged consequences for making up the shortfall and delivering the remaining allocation had not been put before the inspector in evidence or submissions. They were therefore not matters which the inspector was obliged to address on these facts.

4. The inspector’s treatment of precedent was adequate. The authority had raised the issue only briefly and in general terms. The inspector was entitled to respond in kind, particularly in light of the unusual agreement on viability, the limited proportion of the allocation remaining, and his detailed assessment of the proposal’s benefits and harms. It was not irrational to conclude that no precedent would be set because the appeal was decided on its individual planning merits.

5. The education conclusion was also lawful. The inspector accepted that the pupil-yield figures did not justify a primary school for the northern part of Foxbridge considered alone. The possibility that the southern part might not come forward, together with the absence of a requirement for the whole village to proceed as one entity, explained why the policy aspiration of a school at the heart of each village might not be practical. The decision letter, read as a whole, gave clear and adequate reasons.

6. The court reiterated that inspectors’ decisions should be read flexibly and not subjected to hypercritical dissection. Interpretation of planning policy is a legal question, but applying policy, assessing viability, and weighing material considerations are matters for the decision-maker. The parties were directed to file an agreed draft order within 14 days, with consequential matters dealt with by written submissions if necessary.

This was a first-instance statutory review in the High Court under section 288 of the Town and Country Planning Act 1990. The challenged decision was an inspector’s decision allowing the developer’s section 78 planning appeal.