Planning appeal – Material considerations – Ministerial statement – Secretary of state dismissed planning appeal on recommendation of inspector made after inquiry – Whether secretary of state erring in failing to consider ministerial statement on sustainable development issued after close of inquiry but before decision taken – Whether statement capable of affecting outcome of appeal where inspector finding relevant development not sustainable – Appeal allowed
In 2010, the appellant local planning authority refused an application for planning permission for a development of up to 175 dwellings on land close to the village of Shinfield, near Reading. The developer’s appeal against that decision was dismissed by the secretary of state on the recommendation of his planning inspector made after a public inquiry. The inspector found that the development was not sustainable.
On a challenge brought under section 288 of the Town and Country Planning Act 1990, the developer contended that the secretary of state had erred in failing to consider a ministerial statement on “Planning for Growth” issued by the minister of state for decentralisation in March 2011, after the close of the inquiry but before the date of the secretary of state’s decision in the planning appeal. That statement referred to the chancellor of the exchequer’s call for action on growth to rebuild Britain’s economy and stated: “The planning system has a key role to play in this, by ensuring that the sustainable development needed to support economic growth is able to proceed as early as possible”.
Allowing the claim in the court below, the judge held that the ministerial statement was a material consideration to which the secretary of state had been obliged to have regard. She held that, while the secretary of state could properly have concluded that the statement had no bearing on the particular decision, because the inspector had found the development was not sustainable applying an up-to-date development plan, he had not been entitled to disregard it entirely. She quashed the decision accordingly: see [2013] EWHC 802 (Admin); [2013] PLSCS 66. The appellant appealed.
Held: The appeal was allowed.
Although the ministerial statement expressly stated that the principles it contained should be taken into account by decision makers, that was only the first stage in the analysis that the judge should have undertaken. She should then have gone on to consider whether any of the principles set out in the statement would have made a difference to the secretary of state’s decision. The judge should not have decided that the secretary of state’s failure to have regard to the statement justified the quashing of his decision without first identifying which, if any, of the principles of the statement might have persuaded him to allow the appeal. It was insufficient to say that the statement was a material consideration, which decision-makers were required to take into account, unless there was some rational basis for concluding that it might have led the secretary of state to reach a different conclusion on the planning appeal. The principles contained in the statement were largely a restatement of principles found in existing policy documents, which the inspector and secretary of state had taken into account. The inspector had concluded that the proposed development was not sustainable; it followed that the principles in the statement encouraging sustainable development either were not engaged, or pointed in the direction of refusal. In those circumstances, the secretary of state’s decision should not have been quashed.
Saira Kabir Sheikh (instructed by Shared Legal Solutions, of Wokingham) appeared for the appellants; the other parties did not respond to the appeal.
Sally Dobson, barrister