The Court of Appeal in London said that it would be “unrealistic” for the Secretary of State for Communities and Local Government to always be consistent when exercising his planning powers — but his decisions can be challenged when he isn’t.
In the ruling, the court backed an earlier decision to quash outline planning permission for a development of up to 50 dwellings on land in Newick, near Lewes, in East Sussex.
The Secretary of State “called in” the application to make the decision himself and, in November 2016, granted planning permission, agreeing with a planning inspector’s conclusions.
One of the inspector’s conclusions was that one of Lewis District Council’s policies relating to the local plan, and relevant to this decision, was out of date.
Local residents, led by Conservative peer Baroness Cumberlege of Newick and her husband, challenged the decision saying that just nine weeks earlier, in a separate planning decision, the Secretary of State had agreed that the same policy was up to date for the purposes of that decision.
The Secretary of State accepted the point. However the developer, DLA Delivery, continued with the case, lost in the High Court, and appealed to the Court of Appeal.
The judgment, written by Lord Justice Lindblom, said that the Secretary of State’s inconsistency did not automatically negate his decision, because it would be “unrealistic” for him to be aware of all the decisions made in his, and his predecessors’, name.
“I would not accept that, as a matter of law, the Secretary of State ought to be aware of every previous decision taken in his name, whether by himself or a ministerial predecessor or by one of the inspectors to whom his decision-making function is largely delegated,” Lindblom LJ said.
“In my view that concept is unrealistic and unworkable, given the number of decisions on planning appeals that have been made, year upon year, since the modern statutory code came into existence under the Town and Country Planning Act 1947. There will, however, be circumstances in which, having regard to the interests of consistency in decision-making, the court is prepared to hold that the Secretary of State has acted unreasonably in not taking into account a previous decision of his own,” he said.
“Whether this is so in a particular case will always depend on the facts and circumstances … A possible example would be a case in which, within a short span of time, the Secretary of State has called in applications for his own determination, or recovered jurisdiction in appeals, in cases of a sufficiently similar kind, to which the same policies of the development plan apply.”
He ruled that this was just such a case because the two decisions being compared were for the same form of development in the same district, they had both been recovered for determination by the Secretary of State, and the decisions were before the Secretary of State at the same time.
DLA Delivery Ltd v (1) Baroness Cumberlege of Newick (2) Patrick Cumberlege, Court of Appeal (Lord Justice Lindblom, Lord Justice Moylan and Lord Justice Peter Jackson) June 2018
Christopher Young Q.C. and Thea Osmund Smith (instructed by Irwin Mitchell LLP) for the appellant
Heather Sargent (instructed by DAC Beachcroft LLP) for the respondent
