Wiltshire Council v Secretary of State: fire damage cannot invalidate a lawful planning decision

Old Sarum Airfield in Salisbury holds considerable heritage significance, identified by Historic England as one of the best-preserved First World War flying fields in the country. At its heart stands Hangar 3, a Grade II* listed structure whose deteriorating condition had placed it on the Heritage at Risk Register as a category 'A' priority building. Against this backdrop, Old Sarum Airfield Limited secured outline planning permission on appeal for a mixed-use development of approximately 315 residential dwellings alongside employment, leisure and aviation uses — with the restoration of Hangar 3 forming the centrepiece of the heritage justification.

Inspector Fagan granted permission following a nine-day public inquiry, concluding that the heritage benefits of the scheme, principally the restoration of Hangar 3, outweighed the less-than-substantial harm to the conservation area and listed buildings. Condition 17 of the permission ensured no dwellings could be occupied until the main structural repairs and roof restoration were complete.

Eight days after the decision letter was issued, Hangar 3 caught fire. The fire service recorded the cause as "deliberate" in its initial incident report, though a subsequent joint police and fire investigation concluded the cause was undetermined, with no suspect identified. Aviva, the insurer for adjacent buildings, met the claim in full without further challenge — a fact Mrs Justice Lang treated as indicative, on the balance of probabilities, that the investigation did not implicate the developer.

Wiltshire Council applied for statutory review under section 288 of the Town and Country Planning Act 1990, advancing two grounds.

Ground 1 alleged the decision rested on a materially incorrect factual basis, given the changed condition of Hangar 3. The Council invoked the E v Secretary of State for the Home Department [2004] principles on mistake of fact, arguing that the fire — occurring within the six-week challenge period — justified intervention. Mrs Justice Lang rejected this emphatically. The Inspector's decision contained no error of law or mistake of fact at the time it was made; the fire was a subsequent event, not evidence of a pre-existing error. A supervening event cannot retrospectively render a lawful decision unlawful, and the timing of the fire within the challenge period was "merely a matter of chance." The E principles address mistakes as to facts existing at the time of the decision; they have no application to subsequent events.

The Court also distinguished the authorities relied upon by the Council. Launder was confined to the statutory extradition scheme, which imposed a continuing duty on the Secretary of State to keep matters under review — a duty with no planning law equivalent. Once the Inspector issued his decision, D1 was functus officio. ATE Farms concerned entirely different circumstances, where a causation question directly bearing on the appeal had to be determined whilst criminal proceedings remained in contemplation.

Ground 2 contended that the fire amounted to an external injustice vitiating the decision. The Council argued that without Hangar 3's restoration the Inspector's reasoning lost its logic, leaving the developer free to proceed without delivering the promised heritage benefits. Mrs Justice Lang was equally unpersuaded. The planning permission and Listed Building Consent remained fully operative, and the developer had not only stated its intention to restore Hangar 3 but had already submitted detailed surveys, revised costings and a discharge application for condition 3 of the Listed Building Consent. Those documents, uncontested by any evidence from the Council, demonstrated on their face that the costs had risen by approximately a third — to around £4.43 million — but that restoration remained feasible. The statutory mechanism of condition 17 provided sufficient protection: no dwellings could be occupied until restoration was complete.

The application was dismissed. On costs, the Court departed from the general Bolton principle by ordering the Council to pay the developer's costs, finding that the developer's separate representation had been necessary and that its evidence on fire causation and remedial works had been essential to the Court's conclusions.

The case offers a clear restatement of the limits of section 288 review: the court's supervisory jurisdiction does not extend to quashing decisions that were lawfully made simply because subsequent events have altered the factual landscape. Where a planning permission contains conditions designed to secure the very benefits that justified its grant, those conditions — and the statutory machinery for varying or discharging them — represent the appropriate mechanism for managing changed circumstances.

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