The challenge to the inspector’s decision in MacArthur v Secretary of State for Communities and Local Government (see PP 2012/14) was, of course, made under section 288 of the Town and Country Planning Act 1990.The available grounds are (i) “that the action is not within the powers of this Act” and (ii) “that any of the relevant requirements have not been complied with in relation to that action”.
In that case, the claimants also contended that the inspector’s decision on appeal was unlawful in that it was vitiated by a material error of fact. More specifically, the inspector had failed to record or remember that at the inquiry the developer’s expert witness had conceded in oral evidence that his written evidence had under-assessed the impact of the proposed development upon the setting of a nearby scheduled ancient monument.
The courts have over, a period of time, recognised that in the context of judicial and statutory review a mistake of fact giving rise to an unfairness may amount to an error of law. It therefore can become a proper ground of challenge on an appeal limited to questions of law. However, the courts have laid down the following tests that must be satisfied. (1) There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. (2) The fact or evidence must have been “established” in the sense that it was uncontentious and objectively verifiable. (3) The claimant, or its advisers, must not have been responsible for the mistake. (4) The mistake must have played a material (though not necessarily decisive) part in the decision-maker’s reasoning.
In MacArthur, the court accepted that a decision-maker’s failure correctly to record or understand the evidence can amount to a material mistake of fact. However, it was unprepared on the present facts to accept the claimants’ submission that the inspector had based his statement upon the written evidence of the developer’s expert witness, and either forgotten or failed to appreciate that during his oral evidence he had revised his impact assessment.
Accordingly, it could not be said that there was a mistake in respect of a fact that was established, uncontentious and objectively verifiable. This was a fundamental requirement that a claimant had to meet in order to succeed. The court dismissed the claim.
John Martin
