Folkestone and Hythe District Council v Secretary of State for Housing, Communities and Local Government

In a challenge under Town and Country Planning Act 1990 section 288, an inspector’s decision letter must be read fairly and as a whole. Reasons need address the principal important controversial issues, but need not explain every step or provide reasons for reasons. Planning judgments, including the acceptability of outlook, may be expressed briefly where the issue is impressionistic and no objective policy standard applies. A criteria-based planning policy must be complied with cumulatively, but an express proviso may release a proposal from an otherwise applicable requirement. Any error in interpreting development-plan policy may be immaterial where the court is satisfied that the same result would inevitably have followed. Planning conditions may be interpreted in context, including by implication where necessary, and a condition is not unlawful merely because a more detailed condition could have been imposed.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing an appeal against refusal of planning permission for three flats at The Old Laundry, Folkestone.

The Council alleged that the inspector failed to determine the outlook issue, misunderstood Local Plan policy HB3, and unlawfully failed to impose biodiversity and landscaping conditions. Two further grounds concerning internal space standards were not pursued and were formally dismissed. The central questions were whether the inspector’s reasons were adequate, whether policy HB3 had been correctly interpreted, and whether the imposed conditions sufficiently secured the relevant works.

1. Ground 1 dismissed. The inspector’s identification of the main issue as the living conditions of future occupiers encompassed the Council’s concerns about outlook. Read fairly and as a whole, the conclusion that the development would not unacceptably harm living conditions included a conclusion on outlook. The issue was impressionistic, with no objective policy standard prescribing acceptable outlook. The brief reasons were therefore adequate and intelligible. Requiring more would have required reasons for reasons.
2. Ground 2 dismissed. Policy HB3 was criteria-based and its criteria were cumulative. The requirement in paragraph 2(ii) for a 10-metre garden applied to dwelling houses, not flats. Paragraph 2(i) required balconies for flats only where they would not reduce neighbouring privacy. Since balconies could not be provided without overlooking neighbouring properties, the proviso released the development from that requirement. The proposal therefore did not conflict with paragraph 2. In any event, the availability of nearby public open space was a material consideration which would have outweighed any breach, so any interpretative error would have made no difference.
3. Grounds 5 and 6 dismissed. Condition 2 sufficiently captured the ecological measures in the preliminary ecological appraisal. The appraisal was sufficiently clear to support enforcement, and the words requiring the development to be carried out in complete accordance with it supplied an enforceable temporal obligation. The omission of hedgehog measures was immaterial. Condition 2 also secured the approved soft landscaping, while condition 3 secured details of external finishing materials and therefore controlled hard landscaping. The absence of a five-year replacement obligation did not make the permission unlawful because no material risk requiring that additional wording was established.
4. The court rejected any suggestion that conditions could address only principal controversial issues. The statutory power under section 70(1)(a) was broad, although the relative importance of the issue affected the latitude permitted in expressing reasons. Grounds 3 and 4 were formally dismissed as abandoned. The claim failed.

This was a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990 to a planning inspector’s decision dated 6 August 2024. The inspector had allowed the planning appeal and granted permission. The High Court dismissed all six grounds, including the two grounds no longer pursued.