It is clear from the decision in R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 that the duty on the decision maker, in relation to a planning application or appeal, to have regard to material considerations applies up to the time when he makes his decision. Equally, rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 makes it clear that the decision by an inspector on appeal is made when the parties are notified in writing. That means that the inspector in the meantime remains seized of the appeal, even though he may have submitted his decision letter to PINS sometime earlier.
Wiltshire Council v Secretary of State for Communities and Local Government [2015] EWHC 1261 (Admin) involved two conjoined challenges by the local planning authority (“LPA”) featuring the emerging Wiltshire Core Strategy (“EWCS”). This practice point is concerned only with the first. There, the LPA applied to quash the grant of planning permission by an inspector on a planning appeal for the erection of fifteen dwellings. (The main issue in the planning appeal was whether the proposal would be a sustainable form of housing development, having regard to a number of factors.) The LPA’s ground was that the inspector failed to have regard to a material consideration, namely the final report of the examining inspector into EWCS.
That report was received by the LPA on 1 December 2014, after the public inquiry into the planning appeal had closed. The LPA sent it by email to PINS on 3 December 2014, requesting that it be brought to the attention of the inspector. Later that same day, the inspector emailed his decision letter to PINS. On 9 December 2014, the LPA renewed its earlier request to PINS by email. On 24 December 2014, the appeal decision letter was issued. It made no reference to the final report on EWCS. In his witness statement, the inspector maintained that at no time was he aware of the report having been sent on to him.
The court quashed the inspector’s decision, holding that for a number of reasons the report was a material consideration to which he should have had regard. The LPA had suffered prejudice as a result of his failure to do so, in that planning permission had been granted for a development contrary to development plan policy on a basis which was, or may have been, in error – namely housing need. It could not be said that the inspector’s decision would have been the same had he had regard to the report, and therefore the court declined to exercise its discretion not to quash the decision.
John Martin is a planning law consultant
