BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faradene Ltd v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 807 (20th August, 1999)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/807.html
Cite as: [1999] EWHC Admin 807

[New search] [Help]


FARADENE LIMITED v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS v. SUFFOLK COASTAL DISTRICT COUNCIL [1999] EWHC Admin 807 (20th August, 1999)

IN THE HIGH COURT OF JUSTICE 4662/98
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
The Strand

Friday, 20th August 1999


B e f o r e:

MR ROBIN PURCHAS QC
(Sitting as a Deputy Judge of the Queen's Bench Division)

- - - - - -

FARADENE LIMITED

-v-

THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT
AND THE REGIONS

-and-

SUFFOLK COASTAL DISTRICT COUNCIL

- - - - - -

Handed-down Transcript of Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

- - - - - -

MR J TAYLOR and MR P SHAREVIAN (Instructed by Gotelee & Goldsmith, Ipswich 1P1 2AY) appeared on behalf of the Applicant.

MR J HOBSON [MR D FORSDICK - 20/08/99] (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent.

THE SECOND RESPONDENT did not appear and was unrepresented.

- - - - - -

J U D G M E N T
(Draft for approval )

- - - - - -



Friday, 20th August 1999


1. MR ROBIN PURCHAS QC: In this application Faradene Limited applies under Section 288 of The Town & Country Planning Act 1990 to quash the decision of the Inspector on behalf of the First Respondent dismissing the Applicant’s appeal on the refusal of planning permission for the use of land as a retail market and public car park and the erection of a building for holiday and leisure related uses at the former Cavendish Hotel site, Felixstowe, Suffolk. Mr John Taylor Q.C. who appears for the Applicants challenges the decision on grounds that it was perverse, that it failed to have regard to material considerations and that the reasons given were inadequate.


BACKGROUND

2. The appeal site was as its name implies, the site of a former hotel on the seafront at Felixstowe. It is some .6 hectares in extent and was hard surfaced with a small block of lock-up garages in one corner. Sea Road on the Eastern side of the road separated the site from the sea and was used for parking and access to the sea front and other tourist facilities. The appeal site adjoins residential areas to the West and South. There are a number of seaside activities in the area, including the Mannings Amusement Park to the North and the Winter Market site to the South. The appeal site had been used as a market since the early 1980’s pursuant to a series of temporary planning permissions culminating with a permission granted on 28 th July 1995 until the 20 th September 1997 for use as a market on Sundays between April and December and on Wednesdays between 15 th July and 15 th September. On 12 th February 1997, the applicant supplied under Section 73 of the Act to vary those conditions by removing the temporary condition and the restriction to parts of the year. On 9 th May 1997, the application was partially allowed extending the period to 31 st December 1998. On 19 th November 1997 the Applicants made a further application, the subject of the present challenge for redevelopment of the site. It was in outline with all matters reserved illustrative plans supporting the application showed a two-storey building with kiosks on the ground floor and a restaurant and amusements on the first floor on the Sea Road frontage with car parking on the remainder of the site to be used as a market on Sundays and Bank Holidays with a more limited use on Wednesdays and Saturdays. That application was refused on 5 th march 1998. The applicants appealed both decisions. The Suffolk Coastal local plan adopted in December 1994 contained policies for the protection of residential amenity and the promotion of tourism. Policy LP183 sought to promote the Sea Road frontage area for tourist purposes, including the frontage of the appeal site, Policy LP184 dealt with an area of land owned by the Second Respondents, known as the South Sea Front land. The policy provided for its comprehensive development for ‘recreation/leisure orientated use’. In March 1998 the Second Respondents placed on deposit alterations to the local plan. Those alterations proposed policy LP1838 which positively encouraged recreation/tourist uses on the Sea Road frontage. In respect of the South Sea front land at paragraph 11.213A, it provided:


“Nevertheless this area offers potential for development for the overall benefit of the resort because....

there is the opportunity to accommodate the Sunday market away from residential property; ....

48.213.1 consequently the site is allocated for tourism/leisure use, but one which accords with the council’s emerging resort strategy. ......a space to accommodate a permanent market could be a complimentary use. ....


Policy LP184A provided “land ... as shown on the proposals map is identified for a comprehensive development which shall contain as its principal component, the following:
recreation/leisure orientated uses along the sea frontage such as ...

ii) a site for a market (if associated with the termination of the current use of the site between Micklegate Road and Beach Station Road);...”


3. The reference to the current use of the site for a market was to the appeal site. The Applicants objected to those provisions of the deposit alteration. The First Respondent’s policy in PPG1 on prematurety objections is also relevant to this challenge. So far as is relevant, it provided as follows:


47... in some circumstances it may be justifiable to refuse planning permission on grounds of prematurity. This may be appropriate in respect of development proposals which are individually so substantial or whose cumulative effect would be so significant that to grant permission would prejudice the outcome of the planned process by pre-determining the decisions about the scale, location or phasing of the new development which ought properly to be taken in a development plan context. A proposal for development which had a impact on only a small area would rarely come into this category, but a refusal might be justifiable where a proposal would have a significant impact on an important settlement or a substantial area with an identifiable character. .....

48. other than in the circumstances described above, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging development plans which are going through the statutory procedures towards adoption..... The weight to be attached to such policies depends upon the stage of a plan, preparation or review increasing as successive stages are reached, for example: ...

where a plan has been deposited, but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted..... and replace those in the existing plan. The converse may apply if there have been objections to relevant policies. However, much will depend on the nature of those objections and also whether there are representations in support of particular policies; ...

49 Where planning permission is refused on grounds of prematurity, planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the development plan process.”


4. A joint enquiry into the applicants appeals held on 30 th September, 1 st October 1998. According to the affidavit of Neil Alfred Ward, the applicant’s planning consultant, the Second Respondents’ development plans officer accepted in evidence at the enquiry “that if the inspector found that there was no material adverse effect upon amenity at the present site, there would be no need to relocate the market; but the market is not a vital component of draft policy 104A as it in no way affects the other uses proposed for the sea front land.....”. The applicants called expert noise evidence and produced a report which concluded that the market use would not cause a loss of amenity to nearby residents having regard to the guidance of ppg.24 and the relevant British Standard. By a decision letter dated 20 th October 1998, the inspector partially allowed the first appeal (“Appeal A”) by extending the use until 31 st December 1999 and allowing the use on Sundays throughout the year, but dismiss the second appeal (‘Appeal B’). The present challenge is only in respect of Appeal B, but the issues that arise require consideration of the whole decision letter.


THE DECISION LETTER

5. In paragraph 6 of the decision letter, the inspector identified the main issued as follows:


“I think the main issues raised by the appeals are the effect of a permanent all year round Sunday market use on

a) residential amenity through noise and disturbance

b) local highway safety and convenience and

c) the objectives of the adopted local plan for Sea Road and tourism and emerging planning policy in relation to the South Sea Front site.”


6. In paragraph 7 he dealt with the development plan. He noted that there was no major strategic context for the purpose of the structure plan and referred to the policies in the local plan with which I have dealt above. In paragraph 8 he referred to the deposit alterations which he regarded as a material policy consideration. He summarised those policies as follows: “it identifies the appeal site as an areas preferred for leisure, holiday and retail uses and as South Sea Front land had a site for comprehensive leisure development which could include a market to replace the one present operating on the appeal site.” He dealt with Appeal A in paragraphs 9-17of the decision letter. At paragraph 9, he stated “the council did not contest an extension of the permitted market use until the end of 1999. It supported the principle of the market and acknowledged that the spending it bring to the town is an important part of the local economy. The key questions are whether the winter respite period should be relaxed or extended and whether the temporary conditions should be removed altogether.” He dealt with noise and disturbance at paragraphs 10-12. In paragraph 10 he commented on the noise of setting up the market “vehicle manoeuvring was kept to a minimum and although there was some clanking of the steel frames and banter, it did not find the noise excessive or unreasonable. The sounds of trading were not especially noticeable outside the site. My perceptions appear to be confirmed by the noise surveys and calculations.” He continued at paragraph 112 “most market visitors parked in Sea Road in other nearby roads parking was busier than during the previous week and there was some circulation of cars which led to a few tricky passing moments. More people were about the streets. It was difficult to gauge to what extent this was attributable to the appeal market alone, because the Mannings Market was operating and the amusement centres were open. There was also a brownie meeting in the church hall in Langer Road. By notice no illegal parking or access obstructions. 12. Undoubtedly these events effect local amenities and the objectives of policy PL36 which I consider to be relevant to the appeal, the market has however been regarded as acceptable for nine months of the year since 1992 and during the Summer over a much longer period. Whilst I understand the difficulties explained by residents, it seems to me that in the winter there is a reasonable expectation that the impact will be less, stall-holder numbers normally fall by about a quarter and I guess that visitor numbers are also reduced because of fewer market attractions and less hospitable weather conditions, although I surmise that the noise climate of the surrounding area is not much different from the Autumn. On this topic therefore, my conclusion is that the scale of noise and disturbance directly related to the Cavendish Market on the additional days sought, would not be significantly greater than that arising from the development for which permission has been granted at other times of the year. I think that this does not represent a sound and convincing reason for withholding permission for trading between January and March”. In paragraph 16 he concluded that the use did not give rise to concern on highway safety grounds. In paragraph 17 he dealt with tourism and the Sea Road policy as follows:


“There is no dispute that the spending benefit for the market enhanced the tourist aims of policy LP57, however it seems to me to fit far less easily with policy LP183 which relates to the holiday sea front area. The resent operation takes place on two days each week and for the rest of the year the site is a bare unappealing area of concrete and tarmacadam. This is hardly consistent with the long-term objectives underlying policy LP183 for the tourism interests of the locality or the aspirations of policy LP57 in relation to environmental improvements. The grant of a permanent market permission would mean that for most of the time the land would be unused in a form that detracts from the visual amenities and holiday atmosphere of the sea front. The site has languished since the demolition of the Cavendish Hotel and no attempt appears to have been made to implement the kiosk development or the anticipated redevelopment mentioned by the inspector at the 1991 enquiry. In these circumstances, I think there is a real chance that a permanent permission for the market could have the effect of further inhibiting or delaying the kind of more substantial and desirable tourism development policies for the local plans seek to promote.”


7. He summarised his conclusions in paragraph 24:


“In the case of Appeal A I find no convincing grounds for preventing the existing trading pattern tasking place in winter, but I am satisfied that a permanent permission would conflict with the ambitions of policy LP183 of the adopted local pan. Permission will be granted for a temporary period to allow the market to continue operating whilst the permission of the alternative policy site is decided.”


8. In paragraph 26 he further commented on those conditions:


“In relation to Appeal A the council suggested a temporary condition until the end of 1999 and the market authorisation to be between April and September. I disagree with the second as explained above. I think the first is necessary and reasonable because by 2000 the emerging local plan situation and the policy context should be clear. For this further temporary period, I see no reason to disturb or repeat the conditions attached to the 1995 permission.”



9. Mr Taylor submits and I accept, that from these parts of the decision letter dealing with PKA, the inspector can be seen to have accepted that the Sunday market use could operate throughout the year without unacceptable detriment to residential amenity, but that he was not proposed to make that use permanent because at times when the market was not operational, the vacant site would conflict with the objectives of policy LP183. He was however prepared to accept the used on a temporary basis until the end of 1999 to coincide with the determination of the emerging alterations which in accordance with his conclusion on Appeal B to which I refer later in this judgment, would enable the policy context for the future use of the site to be determined (decision letter paragraphs 24 and 26). The Inspector dealt with Appeal B, paragraphs 18-23 of the decision letter. At paragraph 18 he noted “the council indicated that it had no objections in principle to the building proposed or the public parking facility. I note that market days would be as at present with the options of more limited markets on Wednesdays and Saturdays if viable”. In respect of amenity and traffic he concluded at paragraph 19, “the market area would be rather less than currently occupied and I see no reason to conclude that the amenity or traffic affects would be significantly more detrimental than the existing long-standing operation, whilst accepting that it is in practice less than satisfactory. I think the benefits to the town are sufficient to swing the scales in the market’s favour”. In respect of planning policy he continued,


“20. The second application is more compatible with policy LP183 of the adopted local plan. The new policy dimension is the review of the plan and emerging policies LP183A and LP 184A. The frontage building will be in accordance with Section IV of policy LP184A and the public car parking which could also include on-site parking for the kiosk and other uses in the building would be an advantage to which I see no objection. However retention of the market would be at odds with policy LP184A.

Whether or not policy LP184A eventually becomes part of the development plan, its evolution seems to me to have been exceptionally thorough and rooted in a detailed consideration of the regeneration of Felixstowe as a resort. The extensive consultations with interested bodies, the establishment of the regeneration forum and the action plan for the revitalisation of the southern end of the town and the topic paper prepared to inform the local planning review, indicated a degree of careful purpose that has to be taken seriously. All this is backed by the major council ownership of the policy area and the budgetary allocations which prioritise capital investment in the area with a target start date in 2000/2001. I place less weight on the recently submitted application because it remains to be seen what the decision will be on that proposal.

1. The emerging local plan has reached an advanced state of preparation and only one live objection remains to policy LP184A – from the appellate company which, not unreasonably, wishes to protect its commercial interest on the appeal site market. Whether or not this objection is sustained, I consider that the objectives of policy LP184A of the emerging plan for the South Sea Front land represents for Felixstowe a topic of considerable importance. The right forum for considering the policy and its implications and the objection to it, is the local plan enquiry which begins next month.
23 Given there is probably not commercial room for two markets located in this part of the town, it does not seem to me prudent planning to confirm the Cavendish market on a permanent basis in the knowledge that it can create difficulties without a full examination of the merits of an alternative site which might contribute equally to the economic well-being of Felixstowe without the same adverse effects. I consider that to grant permission for the Cavendish market in advance of that policy analysis, which is likely to be completed within the next few months, could prejudice the outcome of the development plan process.”



10. He summarised his conclusions at paragraph 25


“Although there are elements of Appeal B that would accord with the principles of current and proposed planned policies, you have made it clear that the scheme is to be seen as a package, I see no way of separating the built development and the parking use from the proposed market which I regard as unacceptable because of the potential policy conflict, permission in this case will not be granted”.

11. He dismissed Appeal B.


SUBMISSIONS

12. Mr John Hobson who appears for the first Respondent does not contend that the Inspector concluded that there was any objection based on impact to a residential amenity to the redevelopment proposal or in particular the market use. That part of Mr Taylor’s submissions was conceded. Moreover, as is apparent from a comparison with the consultation draft of the alterations which contained a specific proposal for the market use on the South Sea Front land. Mr Hobson accepted that the emerging policy 184A did not seek more than to identify the market use as a possible use that could be accommodated on that land (see LP184A(a)(ii)) if associated with the termination of the applicant’s use on the appeal side. He submits that the inspector plainly had that in mind – see his summary at paragraph 6 of the decision letter. The land identified its accommodation on the South Sea Front land as having overall benefit giving ‘the opportunity to accommodate the Sunday market away from residential property’ (para 11.213A). While the Inspector did not consider the degree of impact on residential amenity was such as to constitute a planning objection to the use, Mr Hobson submits that the Inspector recognised that there was some adverse effect from the present use (see paragraph 23) and that therefore there could be advantage in relocating the use onto the South Sea Front site without that adverse effect. That supported the objectives underlying the emerging alterations. Paragraph 22 of the decision letter demonstrated the inspector had the advice on prematurity in ppg.1 well in mind, the Inspector concluded and was entitled to conclude as a matter of planning judgment, that by allowing the appeal the opportunity of relocation would be lost, thus prejudging or prejudicing the outcome of the development plan process (paragraph 23). The Inspector had concluded that the ‘right forum’ for that decision to be taken was as part of the local plan process and that the appeal should accordingly be dismissed because of maturity. Thus the Inspector’s reasoning was entirely clear. He had had regard to the material considerations including the guidance in ppg.1. It was a matter of planning balance which was for the Inspector and not this court. Mr Taylor submits that once this Inspector concluded that there was no relevant planning objection to the present use, it was not open to the Inspector in the context of emerging policy 184A to conclude that there would or could be relevant prejudice to the plan process in the sense of demonstrable harm for planning purposes (ppg.1 paragraph 40). The policy was not an allocation, the grant of permission for the appeal proposals did not affect the terms of the policy which remain valid whether or not the market was in fact relocated, as was accepted or at least not challenged by the first Respondent. The second \Respondent’s evidence was that the redevelopment of the second Respondent’s land did not depend upon relocation of the market. If the Inspector had rejected that evidence, he would have been bound to say so. There is no suggestion of that kind in the decision letter. Moreover, Mr Taylor submits, this was a case where the proposals accorded with the development plan (see decision letter paragraphs 19 and 20. Whatever ‘less than satisfactory’ (para 19) and ‘creates difficulty’ and ‘adverse effects’ (para 23) may in context mean it was accepted that they did not make the proposed market use unacceptable in planning terms as part of Appeal B. In these circumstances, he submits, the Inspector’s conclusion that the local planning enquiry was the right forum was arbitrary and could not be reconciled with the advice in ppg.1, paras 47 to 49. The decision letter did not set out the \Inspector’s reasoning in that respect, thus Mr Taylor submits that the Inspector’s conclusion was either perverse or reflected a failure to understand that advice or alternatively the reasoning was such as to give rise to a substantial doubt in that respect.


DECISION

13. I remind myself that the statutory duties of the Inspector was to make his decision in accordance with Section 70(2) and 54A of the Act and under the regulations to give reasons for that decision. The principles guide the court’s approach in both these respects are well established and do not need to be repeated here. Whilst materiality is a matter of law, weight is entirely for the decision-maker. Two features of the present case do however require particular attention. The first that on the face of the decision letter, the only reason that the Inspector identified by way of objection to Appeal A was its conflict with adopted policy LP123 in that the land would remain vacant and unused when the market was not in active operation. That ground for objection was on the conclusions of the Inspector, overcome by the Appeal B proposal in that when the market was not in operation, public parking, together with the proposed building would be ‘an advantage’ to which the Inspector saw no objection (decision letter, para 20). Thus on the conclusions of the Inspector, the proposed development on the appeal site would accord with the development plan for the purposes of Section 54A and would not itself appear to be otherwise objectionable. Second, the emerging policy in the alterations does not express itself as a proposal for a market use which continuance of that use on the appeal site might frustrate. Market use on the South Sea Front land was contingent and sited as a possible but not necessary use. Without more, it is not easy to appreciate why continuance of the unobjectionable use on the appeal site would conflict with the policy for the South Sea Front land as drafted. It is not challenged and I accept that the evidence before the Inspector was that the market use was not ‘a vital component’ of draft policy n184A, as it would not affect the other uses proposed for that land. Certainly, there is no finding of the Inspector and evidently no evidence to the effect that he failure to relocate the market would prejudice the realisation of the proposals for that land. There is no recorded suggestion that the policy in the alteration should be modified to require relocation of the market use. As against that, as Mr Hobson submits, the permanent permission for the market as part of the re-development of the appeal site, would inevitably make relocation or substitution of a market use on the South Sea Front land, less likely. However, it seems to me that the policy contemplates the situation in that the market use is identified under policy LP184A as an option and contingent on termination of the current use. While the alterations suggest that the objective behind relocation would be removing the present market use away from residential property, Mr Hobson accepts that this Inspector only expressed objection to permanent market use on the appeal site, was the conflict with adopted policy LP183 to which I have referred above. Certainly the alterations as drafted do not specifically propose termination of the existing use on the appeal site or require relocation as a proposal on the South Sea Front land. It is the emerging policy as formulated in the deposit alterations which the Inspector identified as a material planning consideration. In the absence of any manifest conflict or actual and demonstrable planning detriment, this court is, in my judgment, entitled to and should look with some care to ensure that the Inspector has had ‘regard’ to the advice in ppg.1, either applying it or explaining why he has adopted some other basis for his decision. To apply the policy, it is of course necessary that the decision maker should have understood the policy and approached it on the evidence in a rational way. The decision letter does not suggest that the Inspector made an exception to that advice, indeed I accept from paragraph 22 where the Inspector has regard to the stages reached in the plan preparation, and the importance of the South Sea Front land for Felixstowe, that he had the advice in ppg.1 in mind. The underlying premise of the advice in paragraphs 47-49 of pg.1 is that necessarily applications should continue to be considered in the light of the current policies in the development plan (para 48) – here the Inspector concluded that the proposed development would accord with the policies in the development plan (decision letter paragraphs 19 and 20). The corrections would, therefore, ‘not usually’ be justified other than in the paragraph 47 circumstances (paragraph 48. Paragraph 47 provides the test for objections on prematurity grounds, that is whether the development proposal is so substantial that to grant permission would prejudice the outcome of the planned process by pre-determining decisions about the scale, location or phasing of new development that ought properly to be taken in the development plan context. I accept as Mr Hobson submits, that the Inspector here did conclude that the Sea Front land proposal was so substantial that it should properly be considered through the local plan process. However, in my judgment, when the guidance refers to ‘prejudice the outcome of the plan process’ by pre-determining decisions about scale and location of new development, it is in my view concerned decision to be made as to the form of proposals or policies in the plan and not their future implementation. I agree with Mr Taylor in this respect that the form of the policy, notwithstanding the applicant’s objections, did not require the market to be relocated onto the South side. I do not see that continuance of the market on the appeal site would conflict with the terms of the policy in any identified way. Moreover, on the face of the decision letter, it does not seem to me that this Inspector has identified any planning objection based on residential amenity to the permanent market use as a part of the Appeal B proposals. In these circumstances, I find it difficult to see why any decision on the form of policy LP184A as part of the alterations would be pre-determined by he decision to grant permission for the Appeal B proposals. Policy LP184A could remain unaltered enabling a market use on he South Sea Front land to be included, should the existing use on the appeal site terminate, should for example, a permission for the Appeal B proposals not be implemented. Against that background, I turn to the decision letter to consider the reasons given by the Inspector for concluding that there would be unacceptable prejudice to the development plan process through the grant of planning permission for appeal B. At paragraph 20 of the decision letter, he concludes that retention of the market would be ‘at odds’ with the emerging policy. In context that can only mean that the option albeit contingent, would be less likely in implementation of the policy. In paragraph 22, as I have indicated, he concludes that the right forum for considering the policy and its implications would be at the forthcoming local plan enquiry. In paragraph 23 he concludes that it would not seem ‘prudent planning’ to grant permanent permission for the appeal market in the knowledge that it can ‘create difficulties’ without full examination of the merits of the alternative which might contribute equally to the economic well-being of Felixstowe without the same adverse effects. It is the absence of ‘that policy analysis’ which he concludes ‘could prejudice the outcome of the development plan process’. Looking at the broad thrust of the reasons in the context of the decision letter as a whole, it does seem to me that the Inspector is concerned not so much with the form of the policy which I have indicated expressly left open the possibility of a continuing market on the appeal site, but with its future implementation and whether or not there might not be more advantage as opposed to any detriment to an interest of acknowledged importance through the continuance of the market on the appeal site as opposed to the location of a market on the South Sea Front land. Thus, although the Inspector has had regard to the policy in ppg.1 in the sense that he has reflected its language in paragraphs 22 and 23 of the decision letter, I am not satisfied that he has demonstrated ‘clearly how the grant of permission for the development concern will prejudice the outcome of the development plan process’, at least in the context of the proposed policies (ppg.1 para 49). Moreover, it does not seem to me that the Inspector has identified any reason why continuance of the use as part of the PLP proposals on the appeal site would be in planning terms, objectionable or, on what basis there would be conflict with the proposed Policy LP184A. Given that the relevant policy contemplates as one option continues the market use of the appeal site, in my judgment it cannot be said that permission for Appeal B would necessarily pre-determine decisions on the form of the policy that were properly matters for the development plan process. In these circumstances, while I accept that the approach of the Inspector, in paragraphs 20-23 of the decision letter reflect matters of planning judgment which were for the Inspector and not this court, it does not seem to me that the reasons given are consistent with an understanding of the guidance of prematurity in ppg.1 or its rational application on the facts of this case. Accordingly, I conclude that the Inspector failed to have regard to a material consideration comprising the advice in ppg.1 on prematurity projections, alternatively that he failed to give adequate reasons of his approach in that respect. In my judgment if the guidance in that part of ppg.1 was taken into account in the context of this decision, there was a real prospect that a different conclusion would have been reached on Appeal B. In these circumstances, the challenge succeeds and the decision will be quashed.






© 1999 Crown Copyright


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/807.html