Where a challenge is made to a decision in respect of a planning application on the ground that the decision-maker failed to have regard to a material consideration and the ground is made out, the court nevertheless has a residual discretion not to quash the decision. Following the judgment of the Court of Appeal in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] PLR 25, the court may exercise that discretion if it is clear that decision-maker would have reached the same conclusion in any event.
In Oxford Diocesan Board of Finance v Secretary of State for Communities and Local Government [2013] EWHC 3530 (Ch); [2013] PLSCS 300, the claimant had successfully applied to quash the decision of the secretary of state to refuse planning permission for residential development. That decision was made following an inquiry, and the submission of his inspector’s report recommending refusal. Shortly after the close of the inquiry, and before the secretary of state made his decision, the government issued a ministerial statement entitled “Planning for Growth”.
This emphasised the key role of the planning system in rebuilding the country’s economy by ensuring that the sustainable development needed to support such growth is able to proceed as easily as possible. It also made it clear that the secretary of state would take the principles set out into account when determining planning applications that came before him for determination.
The court of first instance quashed the secretary of state’s decision. While a mere ministerial statement might be low in the hierarchy compared with national planning policies, this one had potential relevance to housing development and it was a material consideration. On the balance of probabilities, the secretary of state had failed to have regard to it.
The Court of Appeal reversed that decision, holding that the court of first instance had only completed part of the analysis that it should have made. It should have gone on to ask whether any of the principles set out in the ministerial statement would have made a difference to the secretary of state’s decision. The appeal judges concluded that those principles were largely a restatement of principles found in existing policy documents, which the inspector and the secretary of state had in any event taken into account. Accordingly, the latter’s decision should not have been quashed.
John Martin
