It was held by the High Court in South Oxfordshire District Council v Secretary of State for Environment Transport and the Regions [2000] 2 All ER 667 that there is no general rule that a party to a planning appeal is to be prevented from raising, in a challenge under section 288 of the Town and Country Planning Act 1990, an argument that had not been advanced in representations made on the appeal. The deputy judge pointed out that if, for instance, the inspector had omitted a material consideration, the decision could be unlawful notwithstanding that the matter had not been raised in representations.
However, shortly afterwards in R (on the application of Newsmith Stainless Ltd) v Secretary of State for Environment Transport and the Regions [2001] EWHC 74 (Admin), Sullivan J – as he then was – stated that the decision in South Oxfordshire should not be regarded as a licence in a section 288 challenge to introduce new material, that is to say material that was not before the inspector. He pointed out, while accepting the absence of any general rule preventing a party from raising new material in such an instance, that only in very rare cases would it be appropriate for the court to exercise its discretion to allow such material to be argued. And it would not be appropriate if the new argument would require some further findings of fact and/or planning judgment, those being matters for the inspector and not the court.
That approach has now been followed by the High Court in Goremsandu v Secretary of State for Communities and Local Government [2014] EWHC 4425 (Admin). There the claimant applied to quash the decision of a planning inspector refusing planning permission for the merger of two flats within a single building. In these proceedings, the claimant sought permission to amend the grounds of challenge by withdrawing a number of them, but also adding a new ground. This was that the inspector ought to have been alert to the fact that planning permission was not required – or arguably not required in this case – although this was not a matter raised before the inspector.
The court refused the application insofar as it related to the addition of a new ground, citing the decision in Newsmith and holding that it was not appropriate to allow such an amendment.
John Martin is a planning law consultant
