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Below is a case summary from Jenny Wigley KC which was first published on LexisNexis.
Harrison v Secretary of State for Levelling Up, Housing and Communities and others [2023] EWHC 16 (Admin)
A judgment of the High Court quashing a decision of a planning inspector appointed by the Secretary of State granting planning permission on appeal for a self-build housing scheme near to the Claimant’s Grade II* listed building. All parties accepted that the Inspector had made an error of fact as to the existence of a flood risk assessment. The dispute centered around whether this error was material to his decision so as to justify a quashing. The Court also considered whether the duty on local planning authorities to notify Historic England under regulation 5A(3) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 also applied to an Inspector on appeal.
What are the practical implications of this case?
The case is a reminder of how important it is to ensure, so far as possible, that a planning inspector does not inadvertently make a decision on a mistaken basis as to the correct facts and information before them. A mistake can give rise to a quashing notwithstanding that it may not relate to one of the main issues under consideration. For this reason, it is important for all parties to a planning appeal to ensure that the Inspector is not led into error by a stray reference or a cut and paste error in the papers provided. If the error is material to one of the Inspector’s conclusions (even on a subsidiary issue) then the decision will be liable to be quashed.
On the heritage issue, the case makes clear that an Inspector on appeal is not under a statutory duty (express or implied) to notify Historic England in circumstances where the setting of a Grade II* may be affected. That statutory duty applies only to local planning authorities (or the Secretary of State where a planning application is made directly to him). Whether or not it is necessary to consult Historic England is a matter of planning judgement for the Inspector, challengeable only on rationality grounds. On the facts, there was no good basis for an irrationality argument here. But where the impact on a listed building is more of a controversial issue than it was in this case, there may be such grounds.
What was the background?
This was a statutory challenge to a decision on an appeal against the District Council’s refusal to grant planning permission for up to nine self build dwellings on land in Caxton, Cambridgeshire. The Council had refused planning permission on transport sustainability and countryside/landscape grounds. The officer’s report appeared to conclude that there was some adverse impact on the setting on a nearby grade II* listed building, Caxton Hall. However, Historic England had not been notified. The officer’s report also included reference to a flood risk assessment (which did not in fact exist).
In the appeal against the refusal, neither heritage nor flood risk were identified as main issues, although third parties, including the claimant, made representations relating to flood risk. The Inspector granted the appeal on the basis that the proposal would cause no material harm to the character and appearance of the countryside, that the settings of heritage assets would be preserved and that there were material benefits of the proposal.
In relation to heritage, it was alleged that the Inspector elided curtilage with setting and failed to take account of the fact that both the council and appellant had found some harm to the setting of Caxton Hall.
In relation to flood risk, the Inspector appeared to rely on the erroneous reference to a flood risk assessment in the officer’s report. At DL25, the Inspector said:
“I note the comments of local residents, and accompanying photographs, with regard to flooding from the Bourn Brook, and the development’s potential to increase the risks to nearby properties. However, I note that a flood risk assessment has been submitted, and that the Drainage Officer is satisfied with this information, subject to conditions. On the evidence before me, I have no clear reason to disagree with the Officer’s conclusions on this aspect of the scheme.”
The Council later accepted that no flood risk assessment had in fact been submitted.
What did the court decide?
There was an uncontentious and objectively verifiable mistake as to an existing fact. The inspector noted that a flood risk assessment had been submitted and that the drainage officer had been satisfied with ‘this information’. No flood risk assessment had in fact been submitted, and the drainage officer had not been satisfied with it. Whether this mistake rendered the decision unlawful depended on whether the mistake played a material (not necessarily decisive) part in the inspector’s reasoning. The Court found that the mistake of fact did play a material part in the reasoning, not least because the inspector’s agreement with the drainage officer’s conclusions was said to be based upon the evidence before him, which he (the Inspector) thought included a flood risk assessment. Accordingly, the conclusion in the third sentence of DL25 could not be said to be untainted by the mistake of fact in the section sentence of DL25, meaning that the mistake was material to the reasoning.
As to heritage, on the facts the Court rejected arguments that the Inspector had failed to take into account material considerations relating to heritage impacts. The Judge considered arguments as to statutory interpretation but concluded that there was no implied duty on the inspector to correct a failure by a local planning authority to notify Historic England under regulation 5A(3) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. That statutory duty applied only to local planning authorities (or the Secretary of State where an application was made directly to him). At the appeal stage, the Inspector has a discretion as to whether to consult, and the exercise of that discretion is reviewable only on Wednesbury principles. On the facts of this case, there was no basis for an argument that the Inspector acted irrationally in not consulting.
Case details
A copy of the judgment may be accessed here.
