The Court of Appeal has taken a rare step in finding that a judge in the High Court had erred in the exercise of his discretion when concluding that a planning inspector’s decision would not inevitably have been the same even if he had not erred in law.
In South Gloucestershire Council v Secretary of State for Communities and Local Government and another [2016] EWCA Civ 74; [2016] PLSCS 40, the only issue before the Court of Appeal was whether it should set aside the exercise of discretion by the judge in the High Court in favour of granting relief by way of a quashing order in a challenge to an inspector’s decision to grant planning permission in an appeal under section 78 of the Town and Country Planning Act 1990. The secretary of state rarely does that. The Court of Appeal therefore had to consider whether, exceptionally, they should do so in the particular circumstances of this case.
AZ lived on a site in Gloucestershire for around a decade. His planning appeal was refused by an inspector in 2010, only for the High Court to quash the decision in 2014. The second inspector granted him personal planning permission upon remittal. In so doing, the inspector accepted expert evidence that AZ would probably take his own life if he lost his home.
The council challenged the grant of planning permission by way of a section 288 application, concerned about the housing land supply findings. The council claimed that the inspector “erred in law” in his conclusions in respect of whether the council could show a five-year supply of housing to meet the demands of its area and had wrongly “front loaded” a requirement to make good an earlier shortfall in housing provision, rather than spreading that need out over the whole 14-year period of its core strategy up to 2027.
The High Court upheld that application in 2014 on the grounds that the second inspector seriously erred in law concerning housing land supply. He rejected the secretary of state’s submission that the inspector’s decision would inevitably have been the same in any event, and quashed the inspector’s decision.
The secretary of state appealed. The Court of Appeal reversed the decision and found that the planning permission should stand. The “extraordinary strength of the considerations that had weighed in favour of planning permission”, such as the applicant’s personal circumstances, meant that it was inconceivable that the inspector’s decision might have been different if the housing land supply issue had been dealt with correctly.
Martha Grekos is a partner and head of planning at Irwin Mitchell
