A challenge under s.288 of Town & Country Planning Act 1990 (“the Act”) is not for deciding issues that were or might have been argued before the planning authority or the planning inspector or to review the planning merits of the inspector’s decision.
In Tesco Stores v SSE  Lord Hoffman said:
“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgement, which is entirely a matter for the Planning Authority. Provided that the Planning Authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the Planning Authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”
Its a fundamental principle of British planning law, that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision.
So the distinction is between whether something is a consideration and the weight to be given to it. The court has the last word on materiality. The weight is a matter of planning judgement within the exclusive province of the Local Planning Authority or the Secretary of State.
So the court is only concerned whether the decision was one which the inspector was entitled to reach. The claimant can only fulfill Section 288(1)(b)(i) and show that it was not within the powers of the Act, by showing that the planning authority or the inspector was not entitled to reach it.
In Smith v Secretary of State for Communities and Local Government & Anor  the claimant applied for planning permission for a site. The proposed development was:
“the stationing of caravans for residential purposes for 1 no. gypsy pitch together with the formation of additional hard standing and utility/day room ancillary to that use.”
The application was refused by the planning authority and the claimant was now challenging his unsuccessful appeal under Section 288 of the Act, as unlawful.
The grounds included failure to take material matters into account.
The High Court said the inspector having determined that there was a level of unmet need for gypsy caravan space, the weight he gave to that issue was a matter for him and not challengeable in court.
The claimant had not established that there was no appropriate alternative site for him, and the factors in favour of the proposed development were outweighed by the harm to the Green Belt and to the Colne Valley Park. It was more a case of the claimant having bought the land and wanting to use it for his caravan.
This blog is posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.