Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities and others

Town and country planning – Planning permission – Material consideration – Local authority refusing planning permission for residential developments – Secretary of state allowing conjoined appeals following inquiry – Claimant objecting to proposed schemes and applying for statutory review – Whether secretary of state unlawfully failing to have regard to green belt review published after close of inquiry but before decision as material consideration – Application dismissed The claimant applied for statutory review, pursuant to section 288 Town and Country Planning Act 1990, of the decision of the first defendant, in which he accepted the recommendations of his inspector, following an inquiry, and allowed two conjoined appeals against the decisions of the fourth defendant local authority to refuse planning permission for two residential developments, on adjacent sites within the metropolitan green belt, in Chiswell Green, near St Albans, Hertfordshire. The “Appeal A” scheme, promoted by the second defendant, was for up to 391 dwellings (and the provision of land for a new school) on a site to the south of Chiswell Green Lane. The “Appeal B” scheme, promoted by the third defendant, was for up to 330 discounted affordable homes for key workers on a site to the north of Chiswell Green Lane. The claimant was a local community group of concerned residents who objected to the proposed schemes during the planning application process. The fourth defendant took no part in the proceedings. The issue was whether the claimant was entitled to challenge the first defendant’s decisions, on the ground that he unlawfully failed to have regard to a material consideration, namely the Arup Green Belt Review, which was published after the inquiry closed but before the first defendant’s decision, in circumstances where none of the parties, in particular the claimant, sought to rely upon the review or provide the first defendant with a copy of it. Held: The application was dismissed. (1) As a general rule, it was incumbent on the parties to a planning appeal to place before the decision-maker the material on which they relied. The determination of a planning appeal did not require the decision-maker to go beyond proper consideration of the material put forward by the parties. That was an important principle, given the strong public interest in the finality of planning appeals. Those principles were to be applied even where the new material was significant, could have been an “obviously material consideration” for which reasons were required and could have affected the outcome. The court was applying a preliminary procedural bar, not making a determination on the merits of the new material: West v First Secretary of State [2005] EWHC 729 (Admin); [2005] PLSCS 81 and Mead Realisations Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin) applied. In the present case, the claimant was aware, before the inquiry closed, that the Arup Review was due to be published shortly. The inspector was entitled to proceed on the basis that none of the parties had sought to rely upon or refer to the review as relevant to the issues in the appeals. (2) Unrepresented parties were bound by the same rules of practice and procedure in public law proceedings as represented parties. In this case, the claimant was not in breach of an express procedural requirement in the Civil Procedure Rules but it had failed, without good reason, to comply with the fundamental obligation on parties to a planning appeal to place before the decision maker the material on which they relied. It was commonplace for parties to be unrepresented in planning appeals, and planning procedures and hearings were arguably easier for unrepresented parties to navigate than court proceedings, as they were more informal: R (Akhtar) v Secretary of State for Communities and Local Government [2017] EWHC 1840 (Admin) considered.    Resources for planning inquiries were finite and there was a strong public interest in the finality of proceedings. No proper justification had been advanced by the claimant for the court to exercise its discretion exceptionally to consider new evidence and grounds which were not raised or relied upon by the claimant in the appeal to the first defendant. (3) The duty on a local planning authority to have regard to all material considerations, in section 70(2) 1990 Act, meant that where a new material consideration arose after a planning committee had resolved to grant planning permission, but before the decision notice was issued, the planning officer was required to refer the application back to the committee for reconsideration, provided certain elements were met. That principle applied in the context of inspectors’ decisions where a material consideration arose after the hearing of appeal but before a decision was made: R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 applied. Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin); [2013] PLSCS 88 and Wiltshire Council v Secretary of State for Communities and Local Government [2015] EWHC 1261 (Admin) considered. The material consideration had to be so “obviously material” that it had to be taken into account; and its existence had to be either known or could reasonably have been discovered or anticipated by the decision-maker. There were three categories of consideration: (i) considerations to which regard must be had; (ii) considerations to which regard must not be had; and (iii) considerations to which the decision-maker might have regard if in their judgment and discretion they thought it right to do so. There was a margin of appreciation within which the decision-maker might decide what considerations should play a part in their reasoning process: Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305; [2018] PLSCS 106; [2018] PTSR 2063 and R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52; [2021] EGLR 5 considered. In the present case, the review was in the third category. Applying the principles in Friends of the Earth Ltd, the first defendant acted rationally, in the exercise of his discretion, in not taking the review into account. It was at an early stage of the emerging local plan process, and consultation was ongoing and it had not been tested by independent examination. Accordingly, the review was not “obviously material” and the first element of the Kides test was not met; the second element was met as the first defendant was aware of the review because it was raised in the post-inquiry correspondence. (4) The duty of sufficient inquiry obliged the decision-maker only to take such steps to inform himself as were reasonable. It was for the public body to decide the manner and intensity of enquiry to be undertaken. The first defendant’s decision to determine the appeals without making further inquiries into the review was rational. He had the benefit of a detailed report from the inspector who had considered the green belt issues in depth. The review was part of the evidence base for the emerging local plan, not a report in the appeals, and it did not address the main issue identified by the inspector and the first defendant. Tameside Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 considered. Piers Riley-Smith (instructed by Richard Buxton Solicitors) appeared for the claimant; Zack Simons (instructed by the Government Legal Department) appeared for the first defendant; Lord Banner KC and Matthew Henderson (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the second defendant; Paul Stinchcombe KC (instructed by Harold Benjamin Solicitors) appeared for the third defendant; The fourth defendant did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of Keep Chiswell Green v Secretary of State for Levelling Up, Housing and Communities and others