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The Court of Appeal has allowed the appeal by the Secretary of State, represented by Stephen Whale, and restored the planning permission granted by an Inspector to AZ back in July 2014. The Court took the very rare step of finding that the Judge in the High Court had erred in the exercise of his discretion when concluding that the Inspector’s decision would not inevitably have been the same even if he had not erred in law. The case represents Stephen’s fifth successive win in the Court of Appeal in the last 15 months, on four of those occasions overturning the High Court. AZ’s case is extraordinary. He has lived on a site in Gloucestershire for around a decade. His planning appeal was refused by an Inspector in 2010, only for the High Court to quash the decision ([2014] PTSR 835). The second Inspector granted him personal planning permission upon remittal. In so doing, the Inspector accepted expert evidence that AZ would probably take his own life if he lost his home. The Council challenged the grant of planning permission by way of a section 288 application, concerned about the housing land supply findings. Mr Justice Singh upheld that application in 2014 on the grounds that the second Inspector seriously erred in law in three respects concerning housing land supply. He rejected the Secretary of State’s submission that the Inspector’s decision would inevitably have been the same in any event, and quashed the Inspector’s decision. The Secretary of State appealed, culminating in today’s Judgment. The Court of Appeal did not resolve the issue as to whether there is jurisdiction to make a declaration in section 288 proceedings, although its discussion provides helpful references for when the point is fully argued. For a copy of the Judgment, click here.
