MMF (UK) Ltd v Secretary of State for Communities and Local Government & Anor

Factual and Procedural Background

This case concerns an application under section 288 of the Town and Country Planning Act 1990 as amended, seeking to quash a decision by an Inspector appointed by the first defendant, the Secretary of State for Communities and Local Government. The Inspector's decision, dated 18 June 2010, refused planning approval for a development at 812 Murton Street in Sunderland. The claimant had originally applied for outline planning permission for a development comprising up to 45 apartments and six commercial units, with certain reserved matters including Layout, Appearance, and Landscaping. The local planning authority, the second defendant, granted outline permission subject to conditions, one of which limited the number of residential units but was later varied on appeal.

The claimant subsequently applied for approval of the reserved matters but mistakenly included Scale and Access, which had already been determined at the outline stage. The second defendant refused this application on several grounds, notably citing concerns about layout, height, and design amounting to overdevelopment and incompatibility with the area's scale and character. The claimant appealed, and the appeal was determined by the Inspector whose decision is under challenge in this judicial review.

Legal Issues Presented

1. Whether the Inspector's decision refusing planning approval was outside the powers conferred on him.
2. Whether the reasons given by the Inspector were adequate to explain his decision.

Arguments of the Parties

Appellant's Arguments

• The Inspector erred by confusing the reserved matters of Scale and Appearance, improperly considering matters of Scale (notably height and bulk) which were not reserved for determination at the reserved matters stage.
• The definitions of Scale and Appearance in the relevant statutory instruments and guidance distinguish these concepts clearly, with Scale concerning the size and physical relationship of the building to its surroundings, including height, and Appearance relating to the design and visual impression excluding height as a physical relationship.
• The Inspector’s reasoning improperly addressed Scale issues under the guise of Appearance, thereby exceeding his jurisdiction.

First Defendant's Arguments

• Height of a building, while involving questions of Scale, also forms part of its Appearance since it affects visual impression.
• In this case, the height had always been treated as a matter of Appearance, supported by prior planning officer reports and an earlier Inspector's report.
• The parties proceeded on the basis that height could be considered under the reserved matter of Appearance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory definitions of "Scale" and "Appearance" as set out in the Town and Country Planning (General Development Procedure) Order 1995 and relevant guidance. "Scale" pertains to the height, width, and length of buildings in relation to their surroundings, while "Appearance" concerns the aspects that determine the visual impression, including architectural details and materials but excluding height as a physical relationship.

The court found that the Inspector conflated these two distinct reserved matters by addressing issues of Scale—specifically building height and bulk—under the heading of Appearance, which was outside the scope of the reserved matters to be determined at that stage. The Inspector’s references to Scale in paragraphs 13, 15, and 17 of his decision indicated that he considered matters not reserved for his determination, thus exceeding his powers.

The court rejected the first defendant’s argument that height could be considered part of Appearance in this context, emphasizing that the height issue was relevant only in a comparative sense relating to Scale. The court also noted that prior submissions by the parties before the Inspector did not affect the proper construction of the decision.

Holding and Implications

The court QUASHED the Inspector’s decision dated 18 June 2010 refusing planning approval for the development at 812 Murton Street.

The decision is remitted back to the Secretary of State for Communities and Local Government for fresh determination. The first defendant is ordered to pay the claimant’s costs in the sum of £12,500, as agreed by the parties. No broader precedent was established; the ruling directly affects the parties by clarifying the proper scope of reserved matters in planning appeals and the limits of an Inspector’s powers in such contexts.