Folkestone and Hythe District Council v Secretary of State for Housing, Communities and Local Government [2025] EWHC 1397 (Admin)

[2025] EWHC 1397 (Admin)Case No AC-2024-LON-003101
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 June 2025
Before
TIM SMITH(sitting as a Deputy High Court Judge)
Between
FOLKESTONE AND HYTHE DISTRICT COUNCILClaimantSECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENTDefendantsMR D CLARK
Mr Jack Smyth (instructed by the Legal Department of Folkestone and Hythe District Council) for ClaimantDr Ashley Bowes (instructed by the Government Legal Department) for First Defendant for The Second Defendant did not appear and was not representedHearing Hearing date: 2 nd April 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 6 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR TIM SMITH DEPUTY HIGH COURT JUDGE

MR TIM SMITH (sitting as a Deputy High Court Judge):

[1]By this claim the Claimant challenges the decision of one of the First Defendant’s planning inspectors. By that decision, which was dated 6th August 2024, the inspector allowed the Second Defendant’s appeal against the refusal of planning permission by the Claimant local planning authority (“the Council”).[2]The Council is aggrieved by the decision to allow the appeal and thereby grant planning permission to the Second Defendant. The Claimant therefore brings a challenge to this court pursuant to section 288 of the Town and Country Planning Act 1990. The First Defendant (“the Secretary of State”) defends the challenge.

Background facts

[3]By a planning application dated 29th November 2021 the Second Defendant applied to the Council for planning permission for the redevelopment of the site known as The Old Laundry, Bowen Road, Folkestone (“the Site”). The redevelopment would provide 3 one-bedroom flats at the Site.[4]The planning application was accompanied by various supporting documents. These included a “preliminary ecological appraisal” (the “PEA”) and application plans setting out details of the proposed development, including the proposed landscaping.[5]The planning application was considered by one of the Council’s planning officers. Acting by delegated powers the officer considered that planning permission should be refused.[6]A delegated report was prepared by the officer setting out the basis for her decision to refuse planning permission. The single reason for refusal recorded on the decision notice dated 24th October 2023 was as follows:
“The proposed accommodation associated with Flat 3 of the proposed development falls short of the required internal space standards required under PPLP Policy HB3. In addition, by reason of its location and size, the external amenity space would fail to provide an acceptable level of external amenity space for the proposed flats. Furthermore, the bedroom areas within Flats 1 and 2 do not provide sufficient outlook for future occupants. The development would therefore result in an unacceptable standard of living for future occupants, failing to provide a good level of internal and external amenity, contrary to Policies HB3 and HB1 of the Places and Policies Local Plan 2020”
[7]The Second Defendant appealed against the refusal of planning permission. His appeal was dealt with by Mr D Young (“the Inspector”), a planning inspector appointed by the Secretary of State to decide the appeal on her behalf. The appeal was determined according to the written representations procedure, meaning that the Inspector undertook a site visit and considered the written submissions of the Second Defendant and the Council before deciding the appeal.[8]The Inspector’s decision was contained in a decision letter (“DL”) dated 6th August 2024. The DL was brief, being less than four pages long. References in this judgment to “DL[#]” are to paragraphs in the DL. The sections of the DL of most relevance to this claim are set out below.[9]At DL2 the Inspector summarised the “Main Issue” in the appeal as being “whether the development would result in unacceptable living conditions for future occupiers”.[10]In analysing the evidence on the main issue the Inspector concluded as follows: “4. The appeal scheme seeks to redevelop the site by demolishing the existing building and erecting a new building containing 3 one-bed flats. The Council takes no issue with the principle of the proposed development but considers the outlook to the bedrooms of flats 1 and 2 as well as the lack of outdoor amenity space would be unacceptable and thereby contrary to Policies HB1 and HB3 of the Places and Policies Local Plan 2020 (the LP).[5]Dealing with outdoor amenity space first, Policy HB3 states that balconies should be provided for new flats provided they do not reduce the privacy of neighbouring dwellings. Based on my own observations, it is difficult to see how the scheme could incorporate balconies that would not overlook neighbouring properties. Indeed, the Council has not suggested otherwise. Consequently, I find the non-provision of balconies in this instance would be justified and would not conflict with Policy HB3. The Council has referred to the requirement for 10m deep gardens. However, that requirement relates to houses rather than flats.[6]While an area of outdoor amenity space is proposed to the front of the building, this would not provide future residents with a meaningful opportunity for sitting out or other activities one might expect from a garden or shared communal space. Occupiers would however be able to access large areas of open space at the Cheriton and Morehall Recreation Areas both of which are within a short walk of the appeal site. Taking these considerations in the round, I do not consider the lack of balconies would cause unacceptable harm to the living conditions of future occupiers. …[11]For the above reasons, I do not consider that the proposed development would unacceptably harm the living conditions of future occupiers. It would not therefore conflict with LP Policies HB1 and HB3 insofar as they seek a good level of internal and external amenity …[16]Although not raised directly by the Appellant, I consider the complete absence of any kind of balancing exercise within the Council’s officer report to be concerning. There was simply no acknowledgement of the benefits of the scheme … On any fair-minded analysis, these benefits clearly outweigh the harms identified by the Council and should have led to the approval of the scheme”[11]The appeal was allowed and planning permission was granted. The Inspector imposed eight conditions set out in the Schedule of Conditions at the end of the DL. Of these it is relevant to two grounds of challenge to note the wording of conditions 2 and 3, as follows: “2. The development hereby permitted shall not be carried out except in complete accordance with the following approved drawings and documents: DR/2193/PA/04, DR/2193/PA/02B, DR/2193/PA/05B, DR/2193/PA/06B, Preliminary Ecological Appraisal Potential Roost Assessment VI and Bat Emergence Survey Report VI.[3]No development beyond the construction of foundations shall take place until details of the external finishing materials to be used on the development hereby permitted have been submitted to and approved in writing by the Local Planning Authority. The development shall be implemented in accordance with the approved details”[12]The Council had proposed to the Inspector with its appeal submissions, on a contingent basis, a series of fourteen conditions in the event that the Inspector was minded to allow the appeal.[13]Of these, proposed condition 8 dealt with the provision of biodiversity offsetting measures in the following terms:
“No development shall occur above slab level, until details of how the development will offset biodiversity loss/enhance biodiversity have been submitted to, and approved in writing by, the Local Planning Authority. This is to ensure that integral features can be accommodated. Details will include generous native species planting, as well as habitat boxes for hedgehog, bats and breeding birds. Boxes for breeding birds will be targeted at S41 priority species/red/amber listed species. Any boxes included for wildlife will include those which are building integrated and be made of Woodstone/woodcrete boxes to ensure durability. The approved measures will be implemented and retained thereafter”
[14]The wording for proposed condition 8 came from the consultation response of Kent County Council on the planning application.[15]Proposed condition 11 related to the provision of soft landscaping in the following terms:
“The approved soft landscape scheme shall be carried out within 12 months of the completion of the development. Any trees or shrubs removed, dying, being severely damaged or becoming seriously diseased within five years of planting shall be replaced with trees or shrubs of such size and species as may be agreed in writing with the Local Planning Authority”
[16]The Inspector declined to impose either proposed condition 8 or proposed condition 11. His reasons in relation to each are found in DL21, where he said:
“The PEA, which is already captured by condition 2, contains various ecological recommendation [sic.] and enhancements. I do not therefore consider a separate condition is necessary to secure a net-gain for biodiversity. The landscaping proposals are clearly shown on the approved plan and there is no suggestion from the Council that these are unacceptable. I do not therefore consider the landscaping conditions to be necessary in this instance”
[17]The Council has brought a challenge against the decision pursuant to section 288 of the Town & Country Planning Act 1990 (“the 1990 Act”). The challenge is resisted by the Secretary of State. The Second Defendant has elected not to take part in the challenge, as is his entitlement.[18]The claim cited six grounds of challenge, which may be summarised briefly as follows: A) Ground 1: the Inspector failed to determine one of the principal controversial issues in the case, namely the third element of the Council’s reason for refusal (the poor outlook from the windows of Flats 1 and 2) B) Ground 2: the Inspector misunderstood or misinterpreted Local Plan policy HB3 C) Ground 3: the Inspector failed to apply national and Local Plan policies relevant to the first element of the Council’s reasons for refusal (the internal space standards for Flat 3) D) Ground 4: the Inspector took into account an immaterial consideration, namely whether Flat 3 would be occupied by a single person, and failed to take into account the nationally described space standards for new residential development of this nature E) Ground 5: the Inspector unlawfully failed to impose a condition related to biodiversity, or provided inadequate reasons for the failure to do so F) Ground 6: the Inspector unlawfully failed to impose a condition related to landscaping, or provided inadequate reasons for the failure to do so[19]Challenges brought under section 288 of the 1990 Act now require the permission of the court to be able to proceed. In this case permission was granted on all six grounds by the Order of Timothy Corner KC (sitting as a Deputy Judge of the High Court) dated 23rd October 2024.[20]Despite permission being granted for them, Grounds 3 and 4 are no longer pursued by the Council. The parties accept that both grounds should therefore be dismissed by me formally. I continue to refer to the remaining four grounds of challenge by their original numbering.[21]Grounds 1, 2, 5 and 6 continue to be pursued by the Council. On that basis the claim came before me for hearing.

The Law

[22]The relevant law is uncontroversial between the parties.[23]Section 70 of the 1990 Act provides that:
“(1) Where an application is made to a local planning authority for planning permission: (a) Subject to sections 91 and 92, they may grant planning permission either unconditionally or subject to such conditions as they think fit; or (b) They may refuse planning permission (2) In dealing with an application for planning permission … the authority shall have regard to: (a) the provisions of the development plan, so far as material to the application, and … (c) any other material considerations”
[24]Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that:
“If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”
[25]Section 288 of the 1990 Act provides as follows: “288. Proceedings for questioning the validity of other orders, decisions and directions.[1]If any person- … (b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds-(i) that the action is not within the powers of this Act, or(ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section. … (5) On any application under this section the High Court- (a) may, subject to subsection (6), by interim order suspend the operation of any order or action, the validity of which is questioned by the application, until the final determination of the proceedings; (b) if satisfied that any such order or action is not within the powers of [the 1990] Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action” (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, (a) may, subject to subsection (6), by interim order suspend the operation of any order or action, the validity of which is questioned by the application, until the final determination of the proceedings; (b) if satisfied that any such order or action is not within the powers of [the 1990] Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action”[26]The approach to be adopted by the Courts when reviewing an inspector’s decision letter was summarised by Lindblom LJ in St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]-[7] as follows: “6. In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government[2014] EWHC 754 (Admin) (at paragraph 19) I set out the ‘seven familiar principles’ that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are: ‘(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment(1981) 42 P&CR 26, at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions[2001] EWHC Admin 74, at paragraph 6). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22). (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993)66 P&CR 80, at p.83E-H). (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government[2012] EWHC 1419 (QB), at paragraph 58).’ …[7]Both the Supreme Court and the Court of Appeal have, in recent cases, emphasised the limits to the court's role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd[2017] UKSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council[2017] EWCA Civ 1314, at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers’ reports to committee. The conclusions in an inspector's report or decision letter, or in an officer's report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).” ‘(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment(1981) 42 P&CR 26, at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953 , at p.1964B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions[2001] EWHC Admin 74, at paragraph 6). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22). (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993)66 P&CR 80, at p.83E-H). (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government[2012] EWHC 1419 (QB), at paragraph 58).’ …[27]There is no in-principle reason why words cannot be implied into a condition imposed on the grant of planning permission when seeking to interpret it (Trump International Golf Club Scotland Limited v Scottish Ministers [2016] 1 WLR 85).[28]In relation to the standard of reasons given for decisions, in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 Lord Brown of Eaton-under-Heywood stated as follows at [36]:
“The reasons for a decision must be intelligible and they must be adequate. They 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”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn… They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications”
[29]Finally, in any case where the court holds that a decision has been arrived at in reliance on a legal error, the court has a discretion not to quash the decision if it is satisfied that the error would have made no difference to the outcome (Simplex GE (Holdings) Limited v Secretary of State for the Environment [2017] PTSR 1041).[30]I turn now to consider the parties’ respective submissions on the four active grounds of challenge before reaching my conclusions on them.

Ground 1 – The Inspector’s conclusions on outlook

[31]Mr Jack Smyth, who appeared for the Council, submitted that although the Council had given a single reason for refusal of the planning application, that reason included three discrete elements: substandard floorspace within Flat 3; substandard provision of amenity space for all three flats; and a poor outlook from the windows of both Flat 1 and Flat 2.[32]Dealing with the third element – outlook – Mr Smyth noted that the Council’s conclusions were based on different facts for Flats 1 and 2. Flat 1 is a ground floor flat with views into it directly from a shared access and gardens of properties to the south. The use of obscure glazing in the single window of Flat 1 is a solution that would preserve the privacy of its occupants, but that would also mean that the occupants could not look out of Flat 1 at all resulting in a poor standard of amenity for them. For Flat 2 the configuration is such that the only glazing possible is a rooflight which, again, allows for no outlook by the occupants, impacting unreasonably on their amenity.[33]Mr Smyth submitted that the DL failed to grapple with the Council’s concerns about outlook at all. The Inspector conducted no analysis of the available outlook and simply concluded: “I do not consider that the proposed development would unacceptably harm the living conditions of future occupiers” (DL11).[34]Alternatively – submitted Mr Smyth – the question of outlook was clearly a principal controversial issue in the appeal, and even if the Inspector did consider it as a discrete issue it is impossible to discern from the brief DL why he found against the Council.

Secretary of State’s submissions

[35]Appearing for the Secretary of State, Dr Ashley Bowes submitted that the Inspector’s summary of the “Main Issues” in the appeal plainly showed that he had the questions of outlook and amenity firmly in mind.[36]Dr Bowes further submitted that the Inspector’s conclusions at DL11 – whilst brief – were adequate to show the reasoning he applied. He added that, the Council having elected to give a single reason for refusal, the Inspector was entitled to approach his conclusions in the same way.[37]In addition, submitted Dr Bowes, it was difficult to see what more the Inspector could be expected to have added to his conclusion on an issue that was necessarily “impressionistic”.[38]In any event Dr Bowes submitted that, read fairly and as a whole, it was clear from the DL that the Inspector would have allowed the appeal in any event. In support of this submission Dr Bowes relied on the Inspector’s comments in DL16.

Analysis and conclusions

[39]I agree that the Inspector’s summary of the “Main Issue” in the case shows that his focus was on the acceptability of the living conditions in the new flats being created. The outlook from the flats was an example of the living conditions under consideration. It was plain from the Council’s written representations in the appeal (as well as from the background to the Council’s refusal of planning permission) that outlook was something it harboured serious concerns over, and the Inspector recorded that fact at DL4.[40]Was the Inspector’s assessment of the concerns around outlook adequate?[41]The guidance from Lindblom LJ in St Modwen makes clear that decision letters need to be subjected to a common sense reading rather than to overly forensic analysis. In particular, at [7] Lindblom LJ commented:
“The conclusions in an inspector's report or decision letter, or in an officer's report, should not be laboriously dissected in an effort to find fault”
[42]It is true that the Inspector’s conclusions on the issue of amenity are brief, stating (at D11) “I do not consider that the proposed development would unacceptably harm the living conditions of future occupiers”. But having acknowledged that part of the amenity concerns related to outlook then, read fairly and as a whole, the compendious conclusion at DL11 can be taken to include conclusions about outlook. I cannot therefore accept the Council’s submission that the Inspector did not reach a conclusion about the acceptability of the outlook from the flats.[43]There can be no serious dispute that outlook was one of the principal important controversial issues in the case. But in assessing the adequacy of the reasons given for the Inspector’s conclusions I accept the submission from Dr Bowes for the Secretary of State that the sufficiency of outlook is a matter of impression. There are no objective standards in policy dictating how the acceptability of outlook should be judged. It is difficult, therefore, to see what more the Inspector could have said as a reason for his conclusions. His impression was that the outlook from Flats 1 and 2 was acceptable. Requiring him to say more would be straying into the territory of requiring “reasons for reasons”, which Lindblom LJ warned against in Secretary of State for Communities and Local Government v Allen [2016] EWCA Civ 767.[44]To conclude, I am satisfied that when the Inspector reached his conclusions about there being no unacceptable harm to living conditions this included a dismissal of the Council’s concerns over outlook. The reasons given for these conclusions, although brief, were nevertheless adequate and intelligible, leaving no real room for doubt (let alone a substantial doubt).[45]Ground 1 is therefore dismissed.

Ground 2 – Misunderstanding or misinterpretation of policy HB3

[46]Mr Smyth submitted that Policy HB3 of the Local Plan is a criteria-based policy requiring all five limbs of the policy to be satisfied. In relation to open space there is a requirement, in limb 2 of the policy, that any new development:
“2. Provides an area of private open space for each new or converted dwelling as one or both of the following: i. A private balcony area with a minimum depth of 1.5m for flats, as long as this does not reduce the privacy of neighbouring dwellings; ii. An area of private garden for the exclusive use of an individual dwelling house of at least 10m in depth and the width of the dwelling. In the case of infill developments there should be sufficient space retained for the original dwelling”
[47]Mr Smyth submitted that neither of the criteria in 2(i) and (ii) were satisfied by the appeal proposals.[48]The Inspector was right to note that the requirement for 10 metre-deep gardens applied only to new houses, not to flats. The Council also has no quarrel with the Inspector’s conclusion that balconies could not be provided for the flats owing to the risk of overlooking. However, submitted Mr Smyth, having acknowledged that the open area to the front of the building “would not provide future residents with a meaningful opportunity for sitting out or other activities one would expect from a garden or shared communal space” (DL6) the Inspector wrongly concluded that Policy HB3 was met.[49]Mr Smyth noted that, in reaching the conclusion about compliance with Policy HB3, the Inspector appeared to have fallen into error by relying on the Site’s proximity to existing areas of public open space to reach this conclusion. Whilst the existence of other open space was a material consideration it could not lead to a conclusion about compliance with the policy. A material consideration had a different role to play in the decision-making process.

Secretary of State’s submissions

[50]Dr Bowes submitted that, properly construed, policy HB3 paragraph 2(ii) does not apply to flats. The reference to “dwelling house” in limb 2(ii) is to be distinguished from the use of the more general term “dwelling” in limb 2(i), which clearly does include flats. In relation to limb 2(i), Dr Bowes submitted that the Inspector was plainly right to conclude that the flats could not accommodate balconies without reducing the privacy of neighbouring dwellings.[51]As to the Council’s contention that the Inspector failed to explain how Policy HB3 was met when neither limb 2(i) not 2(ii) were satisfied, Dr Bowes submitted that this complaint is answered by how the Inspector reached his conclusions in DL5. Having posited that balconies for the flats could not be provided without adversely impacting on amenities, it followed that the express proviso in paragraph 2(i) – “as long as this does not reduce the privacy of neighbouring dwellings” – was engaged.[52]It followed from the above analysis, submitted Dr Bowes, that paragraph 2 of Policy HB3 was complied with: limb 2(i) allowed in certain circumstances for non-compliance with the requirement to provide balconies, and limb 2(ii) applied only to dwelling houses and was therefore not engaged.

Analysis and conclusions

[53]Mr Smyth was correct to submit that Policy HB3 is a criteria-based policy where the criteria are cumulative. All of them must be observed before it can be said that policy HB3 is met.[54]The focus of the parties’ submissions in this case has been on paragraph 2 of policy HB3. Policy 2 has two limbs. It appears to be accepted by both parties that limb (ii), with its reference specifically to “dwelling houses”, does not cover the situation of the Site because there the new dwellings are all flats.[55]That leaves one with limb (i).[56]Limb (i) requires the provision of balconies for flats, and it is accepted that none are provided here. However, the requirement is not absolute. Limb (i) allows for a relaxation from the requirement in circumstances where balconies would “reduce the privacy of neighbouring dwellings”.[57]The Inspector made an express finding, based on his personal observations, that “it is difficult to see how the scheme could incorporate balconies that would not overlook neighbouring properties”. It is entirely reasonable to infer from this the subsidiary finding that the overlooking would reduce the privacy enjoyed by those neighbouring properties.[58]As I read policy HB3 paragraph 2, therefore, the developer is released from the requirement to provide balconies for the flats because the proviso about only requiring balconies where the privacy of neighbouring properties can be retained is engaged. That being so, paragraph 2 is no longer a relevant criterion counting against the development proposals. The Council does not suggest that there was a failure to comply with any other criterion on policy HB3. The Inspector’s conclusion that the proposals “would not conflict with Policy HB3” is therefore a sound one.[59]Even if I am wrong in my conclusion about that, it is relevant to note the Inspector’s comments about the availability of other open space. These conclusions do not bear upon the interpretation of policy HB3, which – when approaching the exercise required by section 38(6) of the 2004 Act – must be the first part of the consideration. But their existence is relevant to the second part of the s38(6) exercise because it is clearly a material consideration to be weighed against a possible breach of the development plan policy.[60]In these circumstances I would have had no difficult in concluding, per Simplex, that an error in the interpretation of policy HB3 (if it could be said to be an error) would have made no difference to the outcome on this issue. Delivering one of the judgments of the Court of Appeal in Simplex, Staughton LJ said:
“,,, where one of the reasons given for a decision is bad, it can still stand if the court is satisfied that the decision-making authority would have reached the same conclusion without regard to that reason”
[61]That is the inevitable conclusion to be drawn from how the Inspector referred to the other areas of open space at DL6.[62]Ground 2 is therefore dismissed.

Ground 5 – Failure to impose biodiversity condition

[63]It is convenient to consider Grounds 5 and 6 together because they are the same species of complaint.[64]In each case the complaint is that the Inspector acted unlawfully in failing to impose a condition on the grant of planning permission. The subject-matter of the conditions is different, but the rationale of the Inspector (and, broadly, the foundation of the legal challenge to their omission) is the same.

Council’s submissions

[65]Mr Smyth noted that the Inspector’s justification for declining to impose the Council’s proposed condition 8 was that it was unnecessary in view of his willingness to impose condition 2. But – submitted Mr Smyth – there were important elements of condition 8 that are not captured by condition 2. Condition 2 does not specify a trigger date for implementing the biodiversity improvements. In addition the terms of the PEA are vague and do not lend themselves well to enforcement through a condition, and in any event it does not cover some elements of the biodiversity offer which the Council consider to be important. For these reasons condition 2 does not do what the Inspector thought it would do and it is not a suitable substitute for the proposed condition 8.[66]A further complaint of the Council is that the Inspector did not explain why he declined to impose the biodiversity condition recommended by the County Council’s ecologist.[67]For these reasons, submitted Mr Smyth, the failure to impose condition 8 was unlawful.[68]The Inspector’s rationale for declining to impose proposed condition 11 was the same, namely that it was an unnecessary repetition of condition 2. For the Council Mr Smyth identified several elements of proposed condition 11 that are not covered by condition 2. There is again no time limit specified for compliance; there is no requirement to replace soft landscaping which (having been planted) dies or becomes seriously damaged or diseased within the first five years after planting; and no ability to control the details of the hard landscaping that would be installed.[69]Condition 2 is therefore not a substitute for condition 11.

Secretary of State’s submissions

[70]In relation to condition 8, for the Secretary of State Dr Bowes submitted that the use of the words “being carried out” in condition 2 did constitute a sufficient trigger point for compliance with the condition. In the circumstances of condition 2 a failure to “carry out” the development without complying with the terms of the PEA would be unlawful and would expose the developer to the risk of enforcement action. He added that, to the extent wording needed to be implied into the condition to reach this conclusion, it was permissible to do so (per Trump).[71]As to the substance of the proposed condition, Dr Bowes submitted that the failure to absorb through condition 2 every element of the Council’s proposed condition did not make the failure to apply condition 8 unlawful. The Inspector had still concluded that there would be a net gain in diversity, and that conclusion was a rational exercise of planning judgement. It was not founded upon any assumption that everything the Council’s condition sought would be delivered.[72]As regards proposed condition 11 on landscaping, the Council conceded that the details required for the soft landscaping are captured by the terms of condition 2, and so complaint can only be made about hard landscaping details. But – submitted Dr Bowes – condition 3 includes sufficient details of the hard landscaping to fill any gaps left by condition 2.[73]Finally, Dr Bowes submitted that neither condition was the cause of much controversy in the appeal. Neither one of them therefore constitute principal controversial issues warranting the level of exactitude which the Council now seeks to apply to them.

Analysis and conclusions

[74]Although during the course of oral argument the gaps between what the imposed conditions and the proposed conditions required appeared to narrow, some gaps still remained.[75]In the case of proposed condition 8, comparing it with condition 2 the three absent elements were that:(a) condition 2 does not establish a mechanism for enforcing the provision of the enhancement works that are included in the PEA;(b) no express time period is given for compliance; and(c) the PEA does not cover provision for hedgehogs, and so even if it were accepted that compliance with the PEA is enforceable through condition 2 it does not cover improvements for all of the species urged by the County Council’s ecologist[76]In relation to (a) Dr Bowes relied on the wording of condition 2, which requires that the development be “carried out in accordance with” various application drawings and documents including the PEA. It is tolerably clear from this that the objectives set out in the PEA are to be enforced through condition 2.[77]I do not accept the criticism from Mr Smyth that the terms of the PEA are not apt for identifying enforceable actions. That seems to me to be an unduly literal reading of the PEA. It is true that the PEA was drafted originally for a different purpose, namely to inform a decision whether to grant planning permission, but that does not mean it cannot be used for the different purpose of specifying the measures which the developer commits to carrying out. Those measures can be isolated from the more descriptive and narrative text in the document.[78]My conclusion is a judgement based on the content of this particular document. It may not always be the case for every planning application document, but it is here. I am satisfied both that enforcement of the PEA is tied into condition 2 and that the terms of the PEA are sufficiently clear to found enforcement action should there be a breach.[79]Dr Bowes’s submission regarding point (b) rests on the use of the words “carried out … in complete accordance with …” in condition 2. By this, submitted Dr Bowes, one can see that a development which has been carried out to the point of completion without the biodiversity measures contained in the PEA will infringe the condition, and that this answers the Council’s complaint that condition 2 does not include a trigger for enforcement of the obligation.[80]Dr Bowes’s submissions on this point relied upon the ability of the court to imply words into a condition to give effect to the true intent of that condition (per Trump).[81]Trump was a case involving a challenge to the consenting of an offshore wind farm pursuant to section 36 of the Electricity Act 1989. The consent was granted subject to conditions. On behalf of the petitioners it was alleged that the wording of one such condition was void for uncertainty, and that this error infected the whole consent such that it should be quashed. The Supreme Court therefore had to consider, amongst other things, the proper interpretation of the impugned condition.[82]Dr Bowes drew attention in particular to two passages from the judgment of Lord Hodge JSC in Trump at [35] and [37], to which I would add the first part of [34] for context: “34. When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, and any other conditions which cast light on the purpose of the relevant words, and common sense …[35]Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent … While the court will, understandably, exercise great restraint in implying terms into public documents which have criminal sanctions, I see no principled reason for excluding implication altogether. …[37]If condition 13 had not provided that the CMS was to contain information about the design statement but, like condition 24, had required only cross- references to it, I, on applying the approach to interpretation set out above, would have readily drawn the inference that the conditions of the consent read as a whole required the developer to conform to the design statement in the construction of the windfarm. The combination of the obligation in condition 14 to have the design statement approved by the Scottish Ministers and what would have been the obligation to cross-refer to the design statement in statements or plans under conditions 13 and 24, with which the Scottish Ministers could enforce compliance, would point inexorably towards that conclusion”[83]It is generally accepted – as the parties in this case do – that use of the term “condition[s] in a public document” (per Lord Hodge at [34]) means that the guidance given in the passages above applies equally to conditions on the grant of planning permission, and not just to section 36 consents that were the subject of this challenge.[84]I accept the argument made by Dr Bowes on this point. Whatever “carried out” means, a development that has been completed must have been “carried out” by that point in time. Should the development be completed without providing the agreed biodiversity enhancements, therefore, the developer could find itself liable to enforcement action.[85]I observe in passing that the Council’s suggested condition 8 would not have offered much of an improvement on condition 2 regarding this point, if any. The final sentence of the proposed wording was:
“The approved measures will be implemented and retained thereafter”
That form of words does not specify a time for compliance either, and so had the condition been imposed in this way the Council would have found itself having to rely upon the principles identified in Trump which the Secretary of State here prays in aid to establish a definite period for compliance.[86]In relation to (c) there is no dispute that provision for hedgehogs is not included in the PEA. Indeed the PEA disavows this with the comment:
“The potential for protected mammals (excl. bats) to be on site is negligible and no further action is deemed necessary”
[87]How significant an issue is this omission? It is not significant in my judgement.[88]I accept that the Inspector did not expressly compare the terms of the PEA with the list of measures sought by the County Council’s proposed condition. However, we do see from DL21 the following comments from the Inspector (with my emphasis):
“Given the conclusions of the ecological reports and the fact that the appeal site is within an established residential area, I am not persuaded there is any justification for a lighting design plan. The PEA, which is already captured by Condition 2, contains various ecological recommendation and enhancements. I do not therefore consider a separate condition is necessary to secure a net-gain for biodiversity”
[89]One can infer from this passage two things of relevance to the arguments about condition 8. The second highlighted passage suggests that the Inspector was content with the extent of measures proposed by the PEA. And the first highlighted passage, although commenting on a different proposed condition (which was also omitted - condition 7), shows the Inspector resisting the imposition of a condition whose terms went beyond the conclusions of the ecological reports submitted by the appellant. As I have noted above, the PEA concluded clearly that no provision needed to be made for mammals other than bats. It is reasonable to interpret DL21 as the Inspector’s conclusion that he was content with the sufficiency of the recommendations in PEA, and that the exclusion of provision for hedgehogs in the PEA was favoured by the Inspector above the request for provision for hedgehogs made by the County Council’s ecologist.[90]Dr Bowes submitted that neither proposed condition 8 nor condition 11 constituted a principal important controversial issue in the appeal. At times he appeared to suggest that this could absolve the Inspector for any mistake in the conditions he did impose. If that was indeed the submission being made then I reject it.[91]There is a difference between the need for a condition and the reasons given for or against imposing one. The ability for a decision-maker to impose conditions is relatively unconstrained by statute. The decision-maker may impose “such conditions as they think fit” (section 70(1)(a)) of the 1990 Act). Whilst case-law has placed some restrictions on the ability to impose conditions, it is plain that the ability is not confined to imposing conditions which deal only with the principal controversial issues in the case. That said, although I have found it necessary to delve a little more deeply than usual into the Inspector’s conclusions to discern the apparent reasons for declining to impose proposed condition 8, the fact that the subject-matter of that condition did not comprise one of the principal important controversial issues in the appeal means that more latitude can be given to the Inspector in how the reasons for his conclusions not to impose a condition were expressed.[92]So far as proposed condition 11 goes, I accept that condition 2 is apt to deal with the detail of the soft landscaping proposed by the developer. That soft landscaping is shown on application plans captured by condition 2. Similarly to my conclusions on condition 8 about ecology, therefore, “carrying out” the development without providing that soft landscaping would allow the Council to enforce a breach of condition 2.[93]In addition, hard landscaping would be carried out using “external finishing materials”. The detail of these is to be approved pursuant to condition 3, and condition 3 goes on to require implementation of the development in accordance with the details approved. As such I am satisfied that the Council can control the hard landscaping details as well as the soft landscaping details.[94]The one element of the landscaping proposals requested by the Council’s proposed condition 11 but which is absent from a combination of conditions 2 and 3 is the requirement to replace soft landscaping which dies or becomes seriously damaged or diseased within 5 years after planting. Dr Bowes did not seek to argue that such a requirement could be implied into the wording of the conditions that were imposed, nor could he do so credibly. However, equally there was no evidence before the Inspector that landscaping on this Site could die or become damaged or diseased and that without such an additional limb to the condition there was a material risk that the site was thereby be at risk of having inadequate landscaping.[95]It is true that a condition which included this subsidiary requirement would have been an improvement on one without it, in that it would have protected against a possible future failure of the landscaping which the Council could insist be planted. But nobody suggested that there was a clear and present danger of that occurring in this case such that the additional wording was necessary. Just because a condition could have been improved upon by the inclusion of additional words does not mean that the condition is unlawful without those additional words.[96]For these reasons I dismiss Grounds 5 and 6.

Conclusions

[97]I have concluded that none of Grounds 1, 2, 5 or 6 are made out.[98]Grounds 3 and 4 were not pursued and I am invited formally to dismiss them, which I do.[99]For these reasons this claim fails.