Background
John Lund sought permission under section 288 of the Town and Country Planning Act 1990 to challenge a Planning Inspector’s dismissal of his appeal against Kirklees Metropolitan Borough Council’s refusal of planning permission for 33 dwellings at Oddfellows Street, Cleckheaton. The proposed access included an unadopted, unlit section of road that all parties agreed required improvement before it could safely serve the development.
Lund offered a unilateral undertaking under which he would fund the road improvements and the development could not commence or be occupied until the works were completed. He argued that the highway authority could deliver the works through its private street works powers under sections 205–208 of the Highways Act 1980. The Inspector accepted that those powers existed but concluded that there was no prospect of the necessary works being completed within the typical three-year lifetime of the permission, given opposition from frontage owners, the need for member approval, and the highway authority’s stated unwillingness to act unilaterally in the face of objections.
The Court’s Holding
Deputy High Court Judge Karen Ridge refused permission because none of the four grounds disclosed an arguable error of law. The Inspector was entitled to consider landowner opposition and the highway authority’s position, not as objections bearing directly on the planning merits, but as evidence relevant to whether the discretionary statutory powers were realistically likely to be exercised. The authority had not adopted the necessary section 205 resolution, and the unilateral undertaking neither compelled it to do so nor removed the practical and political uncertainty.
The Court also rejected the contention that the Inspector misunderstood the policy governing negatively worded, or Grampian, conditions. Read fairly and as a whole, the decision applied the correct test—whether there was no prospect at all of the required action occurring within the condition’s time limit—and adequately explained why that test was met. The reasoning was neither contradictory nor irrational, and the remaining grounds amounted to an attempt to reargue the Inspector’s planning judgment.
Key Takeaways
- In assessing a Grampian condition, an inspector may consider practical evidence about whether a public authority is likely to exercise discretionary statutory powers needed to deliver off-site works.
- An offer to fund highway improvements does not establish deliverability where the highway authority has not resolved to initiate the statutory process and cannot be compelled by the undertaking to do so.
- A section 288 challenge will not succeed merely by recasting disagreement with an inspector’s evidence-based planning judgment as inadequate reasoning or irrationality.
Why It Matters
The decision underscores that the legal availability of statutory powers is distinct from a realistic prospect that those powers will be used within the lifetime of a planning permission. Developers relying on third-party or public-authority action to satisfy a negatively worded condition need credible evidence that the required action is practically deliverable.
It also illustrates the limited supervisory role of the court in a section 288 statutory challenge: where an inspector identifies the correct policy test, considers material evidence, and gives an intelligible explanation, the court will not revisit the underlying planning merits.