Town and country planning – Planning permission – Procedure rules – Claimant applying to quash decision of first defendant secretary of state dismissing appeal against refusal of planning permission for housing development – Whether first defendant proceeding unfairly and irregularly by failing to comply with regulation 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 – Application granted
The claimant brought a claim for statutory review, under section 288 of the Town and Country Planning Act 1990, seeking to quashing the decision of the first defendant secretary of state dismissing its appeal against the refusal of the second defendant local planning authority to grant planning permission for up to 180 dwellings, open space, associated infrastructure and highways access at a site north of Lower Lane, Berry Hill, Coleford, Gloucestershire. The site was contiguous with the existing settlement boundary or built up area of Berry Hill and was also close to the Wye Valley Area of Outstanding Natural Beauty. One of the key issues for the inspector to determine was the visual impact of the proposal and its effect on the landscape The second defendants’ refusal to grant planning permission was appealed to the first defendant’s inspector, pursuant to section 78 of the 1990 Act.
The inspector recommended that the appeal should be allowed concluding that the proposal would bring a range of associated benefits related to the substantial contribution it would make to addressing the shortfall in housing land supply, bearing in mind the high level of needs identified. Following a public inquiry, the first defendant directed that he would recover and decide the appeal for himself under statutory powers. He subsequently issued a decision letter rejecting the inspector’s recommendations and dismissing the appeal.
The claimant contended, amongst other things, that the first defendant had proceeded unfairly and irregularly by relying on matters relating to housing need and supply (DL 29 and 30) without complying with regulation 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (the 2000 Procedure Rules) and providing an opportunity for the parties to challenge those facts and make representations.
Held: The application was granted.
(1) The first defendant was not required to agree with the inspector’s recommendation: under the statutory scheme, the conclusion in the latter’s report was no more, and no less, than that. In particular, it was open to the first defendant to reach his own, and different, planning judgments. It was not incumbent on a decision-maker to alight on any precise figure. It was open to the inspector to arrive at the conclusion she did and she had applied the qualification “in the region of” in relation to the numerator of the fraction calculating housing supply, it was equally open to the first defendant to follow an alternative course. Paragraphs DL29 and 30 were clear and free from ambiguity.
(2) The obligation under rule 17(5) of the 2000 Procedure Rules was a continuing one and once paragraphs DL29 and 30 had been finalised, it was incumbent on the first defendant to activate that rule. Both sub-paragraphs (a) and (b) were applicable, although the principal focus had to be on (b). The first defendant had differed from the inspector on a matter of fact (a). The reason why he had done so was because he had taken into account new evidence (b). Rule 17(5) was not activated if the secretary of state discovered new evidence but decided at that juncture not to take it into consideration (b)), but in the event that he did, or was minded to, he had at that stage to seek further representations from the parties if he considered that the new evidence was likely to form the basis, in whole or in part, for the ultimate recommendation reached. The first defendant did not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely had to form part of the decision-making process. Furthermore, the rule said “disposed to disagree” which imported a lower threshold.
(3) The first defendant was in breach of rule 17(5) and the claimant had failed to show that his decision would necessarily have been the same had the breach not occurred. On the premise that the first defendant had taken into account the extent or degree of the housing shortfall, and therefore applied the law as enunciated by Lindblom J in Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), as affirmed on that aspect by Lord Carnwath at paragraph 29 of his judgment in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] EGLR 27, it could not be demonstrated that the DL29 and 30 factual finding did not permeate subsequent paragraphs in the decision letter. The inspector expressly bore in mind the high level of need identified. On the assumption that the first defendant applied his mind to the same general question, the assumption had to be that he did so on the basis of a lower level of need. Accordingly, the first defendant’s decision letter would be quashed and the appeal remitted to him for reconsideration.
Richard Kimblin QC (instructed by Irwin Mitchell LLP) appeared for the claimant; Tim Buley (instructed by the Government Legal Department) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
