Town and country planning – Local plan – Material considerations – Appellant appealing against order allowing respondents’ application challenging decision of secretary of state to allow appeal against refusal of planning permission – Whether earlier decision of secretary of state was material consideration – Whether failure to take account of earlier decision unlawful – Whether interested party in breach of regulation 68(3) of Conservation of Habitats and Species Regulations 2010 – Appeal dismissed
The appellant company appealed, under section 78 of the Town and Country Planning Act 1990, against the decision of the local planning authority to refuse its application for outline planning permission for a development of up to 50 dwellings on land at Mitchelswood Farm, Allington Road, Newick. The interested party secretary of state allowed that appeal. The respondent and her husband were residents of Newick and members of the Newick Village Society. They were objectors to the appellant’s proposal. He concluded that saved Policy CT1 of the Lewes District Local Plan, which required development to be “contained within … Planning Boundaries”, was out of date, and that the policy for the presumption in favour of sustainable development in para 14 of the National Planning Policy Framework (NPPF) was therefore engaged.
The High Court allowed the respondents’ application under section 288 of the 1990 Act, challenging the decision of the interested party. The decision was challenged on two grounds: (i) that he had failed to take into account as a material consideration his own conclusion in a decision letter nine weeks earlier dismissing an appeal for a proposed development at a different site, that Policy CT1 was up-to-date; and (ii) that he had made a material error of fact in treating the appeal site as lying outside the 7km “zone of influence” for a Special Protection Area (SPA) and Special Area of Conservation (SAC), or had unlawfully granted planning permission without imposing a condition to ensure that the new housing would be built outside the zone of influence so that planning permission had been granted in breach of regulation 68(3) of the Conservation of Habitats and Species Regulations 2010: [2017] EWHC 2057 (Admin). Permission to appeal was granted.
Held: The appeal was dismissed.
(1) The judge had undertaken a careful review of the relevant authorities and was entitled to conclude that, on analysis policy CT1 was so obviously material that no reasonable person would have failed to take it into account in the circumstances. There was no need for any further discussion of the relevant jurisprudence or any need to add to it because the essential legal principles were already sufficiently clear: Re Findlay [1985] AC 318 and CREEDNZ Inc v Governor General [1981]1 NZLR 172 applied. Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P & CR 19 considered.
(2) As a general principle, policies issued to guide the exercise of administrative discretion were an essential means of securing consistency in decision-making and such policies had to be consistently applied. That principle applied in the sphere of land use planning, where, under the statutory code, decisions on applications for planning permission had to be determined in accordance with the development plan unless material considerations indicated otherwise. Previous decisions of the secretary of state or his inspectors on planning appeals were capable of being material considerations. In these proceedings the court was concerned with a previous appeal decision of the interested party issued after the close of the inquiry in the case under consideration, and not relied upon by any of the parties. However, there could be no absolute rule that, when the previous decision had not been placed before the secretary of state by one or more of the parties, he was never obliged to have regard to it, in the light of a decision-maker’s general obligation to take reasonable steps to acquaint himself with the relevant information to enable him to decide relevant questions correctly. Because consistency in planning decision-making was important, there would be cases in which it would be unreasonable for the secretary of state not to have regard to a previous appeal decision bearing on the issues in the appeal he was considering, even though none of the parties had brought it to his attention. Moreover, the court should not attempt to prescribe or limit the circumstances in which a previous decision could be a material consideration. The circumstances would vary, but it was necessary to consider whether the secretary of state was aware or ought to have been aware of the previous decision, and its significance for the appeal now being determined. In the present case, the interested party’s previous decision was obviously material and it was unreasonable for him not to have regard to it. It would not have been difficult for those tasked with preparing decision letters on behalf of the interested party to find out whether another decision had recently been made by him on effectively the same issues. In the particular circumstances, no reasonable secretary of state, aware of his responsibility for securing consistency in development control decision-making, would have failed to take reasonable steps to ensure that his own decisions on cases of the same kind, in the same district, taken within the same period, and which, for the same reason, he had recovered to determine himself, were consistent with each other. Any inconsistency had to be clearly explained. The onus lay on the interested party to inform himself of the decision and have regard to it. The two decisions were inconsistent, so as to require a clear explanation for the main points of difference: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 applied. R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76 followed.
(3) Part of the site was within the 7km zone of influence and there were no conditions or restrictions to prevent the erection of buildings on that land. The designation of the 7km zone was the means by which the precautionary principle was given effect. Not only had the interested party made a mistake of fact as to the relationship between the site of the proposed development and the zone of influence, but that mistake led him to decide the appeal in breach of article 6(3) of the Habitats Directive and regulation 68(3) of the Habitats Regulations.
Christopher Young QC and Thea Osmund Smith (instructed by Irwin Mitchell LLP) appeared for the appellants; Heather Sargent (instructed by DAC Beachcroft LLP) appeared for the respondents; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of DLA Delivery Ltd v Baroness Cumberlege of Newick and another.
