Regina (Novalong Ltd) v Secretary of State for the Communities and Local Government: Admn 2008

Sullivan J rejected an argument that the Secretary of State should have deferred to an Inspector’s judgment as to the merits of a planning application, the Inspector having had a personal viewing of the site. He said: ‘Mr Katkowski referred to the decision in R (on the application of) Newsmith Stainless v Secretary of State for the Environment Transport and the Regions [2001] EWHC 74 (Admin) in which I referred in para 8 of my judgment to the importance, often the crucial importance in a planning context, of the site [inspection] [a]nd said . . that: ‘maps and paragraphs may be helpful but they are no substitute for a site [inspection. As] those who intend planning inquiries know [only too well, photomontages are often very far from being uncontroversial] when produced in evidence and [photographs] not infrequently contradict the proposition that the camera cannot lie [particularly] when questions of landscape impact are in dispute.’
Mr Katkowski submitted that since the Inspector who had had the benefit of a site visit had concluded that the proposed development would be unlikely to have a harmful impact (see para 186 of the report), the First Defendant was not entitled to reach a different conclusion unless one of her officials had visited the site to ascertain whether a different conclusion could be justified. He accepted that the First Defendant, herself, was not required to visit the site.
I have no hesitation in rejecting this submission as being wholly misconceived. It is one thing to say that an Applicant in s 288 proceedings will have an uphill task in persuading a judge that an Inspector who has seen the site has reached a Wednesbury perverse conclusion on a matter of planning judgment. It is quite another to submit that the Secretary of State is not entitled to disagree with an Inspector’s judgment on the planning merits because she will have been considering plans and photographs, or in some cases photomontages and not personally have visited the site.
The two situations are not at all comparable. The court hearing an application under s 288 is exercising a legal judgment. Was the Inspector’s conclusion so unreasonable as to be unlawful? Whereas, the Secretary of State on appeal under s 78 is exercising a planning judgment. Does she agree or disagree with the views expressed by the Inspector? Subject to giving adequate reasons, she is entitled to disagree with the Inspector on matters of planning judgment, even though she will not have seen the site herself. It is in the nature of recovered appeals that the decision-taker will not have seen the site and will be relying upon the Inspector’s report and the documents, maps photographs etc accompanying the report. In the present case those included not merely the environmental impact assessment, there was also a landscape appraisal and a number of drawings, including a height contour plan and an illustrative masterplan.
Unlike the position in Newsmith Stainless where the Claimant was attempting to introduce new material: photomontages etc, that had not been before the Inspector at the inquiry (see para 9 of the judgment), in the present case the First Defendant was basing her conclusions upon the material that had been provided by the Inspector. All of the detailed concerns expressed in para 32 of the decision letter related to matters which would have been readily apparent from the plans accompanying the Inspector’s report, one of which was included in the court bundle. Based on those detailed concerns the First Defendant was entitled to conclude in para 33 of the decision letter that the proposed flats would not reflect the distinct character of the area (which had been described in some detail in the Inspector’s report) and would detract rather than add to the experience of those living within it. In reaching those conclusions the First Defendant was doing no more than agreeing with one of the Second Defendant’s reasons for contesting the appeal (see para 9 of the Inspector’s report).’


Sullivan J


[2008] EWHC 2136 (Admin)


CitedNewsmith Stainless Ltd, Regina (On the Application of) v Secretary of State for Environment, Transport and the Regions Admn 1-Feb-2001
Application was made to quash an inspector’s decision.
Held: An inspector’s decision was not to be challenged as to its facts. In any case where the expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness or . .

Cited by:

CitedWind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .
Lists of cited by and citing cases may be incomplete.


Updated: 15 May 2022; Ref: scu.539762