Town and country planning – Planning permission – Material consideration – Claimant local planning authority seeking order quashing decision of first defendant secretary of state to grant second defendant planning permission for strategic rail freight interchange – Whether defendant erring in requiring very good reason for departing from prior decision – Whether defendant wrongly failing to consider earlier decision concerning another company – Application dismissed
The claimant local planning authority refused the second defendant company planning permission for a strategic rail freight interchange on land in and around the former Radlett Aerodrome, North Orbital Road, Upper Colne Valley, Hertfordshire. The first defendant secretary of state, having considered a report prepared by his inspector, allowed an appeal by the second defendant against that decision and granted planning permission, subject to a satisfactory section 106 obligation being entered into.
The claimants applied under section 288 of the Town and Country Planning Act 1990 for an order quashing that decision. The claimants were supported by the interested party, a company set up to campaign against the proposed development by channeling representations from local communities affected by the proposals. They contended that the first defendant had: (i) erred by setting a legal test requiring a very good reason to be shown for departing from a conclusion reached in the inspector’s report and decision letter on a previous appeal with respect to the site, which had improperly fettered his discretion when determining the present appeal; and (ii) failed to take into account his previous decision, refusing the application by another company, Veolia ES (UK) Ltd, for planning permission for a waste management facility near the current site.
Held: The application was dismissed.
(1) The inspector and the first defendant secretary of state had not either misdirected themselves by imposing a legal test requiring a good or very good planning reason for disagreeing with the earlier decision to be shown, or improperly fettered the scope of their discretion to reach independent judgments on the merits of the application. Moreover, there was no basis for suggesting that the reasoning of the first defendant or the inspector had been inadequate in relation to the issue: R (on the application of the Kings Cross Railway Lands Group) v Camden London Borough Council [2007] EWHC 1515 (Admin) applied. R v Secretary of State for the Environment Ex parte Gosport Borough Council ([1992] JPL 476 and Dunster Properties Ltd v First Secretary of State [2007] 2 P & CR 26; [2007] PLSCS 40 considered.
(2) The decision of the Court of Appeal in North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 17 established the importance in development management of consistency between indistinguishable planning decisions but that was not an absolute principle. A subsequent decision-maker might disagree with an earlier decision which was material and drawn to his attention, provided that he gave reasons for doing so and had regard to the importance of consistency. Likeness or similarity would depend upon the circumstances. In the present case, on the material before the court, it was impossible to reach the conclusion that, as a matter of law, matters in the Veolia decision upon which the claimants relied had been sufficiently closely related to the issues in the present appeal, that they had been so obviously material to the latter that the first defendant had been under an obligation to take them into account. Alternatively, applying the test in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1991] JPL 241, the claimants had not shown that the matters in the Veolia decision upon which they relied had either been fundamental to the present appeal or that it was clear that there was a real possibility that those matters would have made a difference to the present decision if they had been taken into account: R v Secretary of State for the Environment, ex parte Baber [1996] JPL 1034 considered.
Matthew Reed and Sasha Blackmore (instructed by St Albans City and District Council) appeared for the claimants; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; Maertin Kingston QC and David Forsdick QC (instructed by Hogan Lovells) appeared for the second defendant; Paul Stinchcombe QC and Ned Helme (instructed by Wayne Leighton LLP, of Edgware, Middlesex) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read transcript: St Albans City and District Council v Secretary of State for Communities and Local Government and others
