The principle to be derived from the decision of the Court of Appeal in North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 is that a subsequent planning decision maker is entitled to disagree with a critical aspect of a previous planning decision in an undistinguishable case, provided that he gives reasons for doing so. (This is so whether the decisions relate to the same appeal site, or to two different ones.)
In St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin) the claimant applied to quash a decision on appeal made in 2010 by the secretary of state, following an inquiry held by an inspector, to grant planning permission for a strategic rail freight interchange on land in the green belt. This was against the background of an earlier appeal decision made by the secretary of state in 2008, again following an inquiry held by an inspector, to refuse planning permission for an identical development on the same site.
The claimant’s principal ground of challenge was that the secretary of state had erred by setting a legal test requiring a “very good reason” to be shown for departing from a conclusion reached in the 2008 inspector’s report and the secretary of state’s 2008 decision letter. In that way, he had improperly fettered his discretion when determining the second appeal.
The court, having reviewed the 2010 inspector’s report and the secretary of state’s 2010 decision letter, concluded that the secretary of state had not misdirected himself by imposing such a legal test. Accordingly, it rejected this ground of challenge. But the court went on to hold – in accordance with apparent common ground between the parties – that none of the authorities dealing with the importance of consistency in planning decision making supported the proposition that such a legal test applied.
The judge pointed out that judicial comments made in R (on the application of King’s Cross Railway Land Group) v Camden London Borough Council [2007] EWHC 1515 (Admin) to the effect that the subsequent decision maker would have to have a “good reason” for departing from an earlier conclusion in such circumstances, did not amount to recognition of the existence of a legal test. They were simply a reflection of the practical realities.
John Martin is a planning law consultant
