Inspector’s Decision Letter Impliedly Addressed Necessary Consideration of Emerging Planning Policy

A difficult issue for planners has been the weight to be given to emerging plans and policies.

In Langton Homes Limited v Secretary of State for Communities And Local Government & Anor [2014] the applicant sought review of a planning refusal on appeal.

The first issue was whether the Inspector had engaged with what the Claimant’s solicitors had submitted about the implications of the Local Planning Authority (LPA)’s Scoping Consultation document.

The court found somewhat far-fetched the suggestion that significant weight could be given to a statement of planning intention by the LPA less than 2 months after it had been issued, before any responses had been given and evaluated, before the draft Plan itself had been published and a long time before the Examination in Public.

Following Tesco Stores Ltd v. Secretary of State for the Environment [1995] (Lord Hoffman) and Newsmith v. Secretary of State for the Environment, Transport and the Regions [2001] (Sullivan J) it was a matter of “planning judgment” for the Inspector to decide how much weight to give to the expression of intention in the Scoping Consultation document, and it was not for the court to substitute any alternative view (unless the Inspector’s judgment was “perverse”).

Here the Inspector did not say expressly that she thought it premature to give the potentially emerging policy any weight, or any sufficient weight to outweigh other considerations, but it appeared obvious to the court that the Inspector was conveying it when she said “I have taken the representation made by the Appellant into account in determining this appeal.” (Emphasis added.) Also this was to be seen in the context of its being in a decision letter addressed to “parties who [were] well aware of all the issues involved.”

Whilst the judge was commendably in favour of brevity some of us might disagree that “the short reason given for not attaching any or any significant weight to the potentially emerging policy must be seen as “intelligible and … adequate””.

The judge claimed support from Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No 2) [2004]. There Lord Brown had said whilst the decision letter need not address every material consideration:

“[The reasons given in the decision letter] must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”………..The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by ….. by failing to reach a rational decision on relevant grounds…… They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, ……….A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

We may disagree with the judge’s view that the Inspector’s sentence in the decision letter (emphasised above) met those requirements in the South Bucks case because, seen in the context of the whole decision letter (which included a statement by the Inspector that she had taken into account the additional submissions made on the Claimant’s behalf), it gave the informed reader the gist of the Inspector’s reasoning for her particular conclusion as to the implications of the Scoping Consulation.

The review application also failed on a number of other challenges to the Inspector’s approach.

This blog has been posted as a matter of general interest. It does not remove the need to get proper legal advice in individual cases.

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