The High Court (John Howell QC sitting as a Deputy High Court Judge) today quashed a planning permission granted by the Secretary of State on appeal for up to 50 dwellings in Newick: Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government  EWHC 2057 (Admin).
The two grounds of challenge were:
- That the Secretary of State had failed to take into account a material consideration, namely a decision letter issued by him just over two months previously in which he had concluded that saved Policy CT1 of the Lewes District Local Plan was up-to-date for the purposes of the National Planning Policy Framework (he had reached the contrary conclusion in the Newick decision); and
- That the Secretary of State had made a material error of fact in treating the appeal site as falling outside the 7km Ashdown Forest SPA and SAC protection zone; or alternatively had unlawfully granted planning permission without imposing a planning condition to ensure that the proposed new dwellings were not constructed within the 7km protection zone.
The claim was allowed on both grounds. On Ground 1, the Judge reasoned as follows:
“i. the test to be applied when determining when a decision may be invalid when a consideration, that is capable of being material, is not taken into account
149. When a particular matter is not one that is required by an enactment to be taken into account expressly or by necessary implication, a decision may be invalid when no reasonable decision-maker in the circumstances would have failed to take that matter into account.
150. The legal test in such a case is not whether the matter was “so obviously material to a decision…that anything short of direct consideration of [it]… would not be in accordance with the intention of the Act”. If that test is less stringent than such an “unreasonableness test”, then a failure to take into account a particular matter that in the circumstances an authority could reasonably have decided not to take into account may nonetheless render the decision unlawful. That would be inconsistent with a basic principle in public law that, absent any other flaw, a statutory discretion has to be exercised unreasonably in some respect if it is to be treated as having been exercised unlawfully.
151. This “so obviously material” formulation is also not one that it is desirable to use as a test to identify what matters no reasonable decision-maker would have failed to take into account in the circumstances. It is a more opaque formulation of the relevant criterion and one that may tempt the court to say what was, or was, not in its view “so obviously material” in the relevant sense, rather than focussing on what the decision maker might or would have reasonably thought in the circumstances (which is what the court is required to do when reviewing the exercise of an administrative discretion). Moreover (and of significance in this case), when considering whether no reasonable decision-maker would have failed to take a matter into account that it has not addressed and of which it may be in ignorance, it may be necessary to consider, from the decision-maker’s perspective, not merely how significant (or obviously material) its content might have been in relation to the decision but also its likely availability and any difficulties there may have been in ascertaining its existence and obtaining it. It is simpler, and less likely to mislead or produce an incorrect result, to ask only whether the matter is one that no reasonable decision-maker would have failed to take into account in the circumstances.
ii. consistency in decision-making
152. There is a public interest in securing reasonable consistency in the exercise of administrative discretions, which may mean that it is unreasonable for a decision maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances. Whether a decision with which the decision-maker has not been supplied is one that no reasonable decision-maker would have failed to take into account in the circumstances will depend on the circumstances, including those outlined above.
153. When the Secretary of State or one of his inspectors is considering a planning appeal, they are not presiding over a merely adversarial process. The function vested in them is one to be discharged in accordance with the law, not unreasonably and in the public interest. When considering the discharge of that function, however, there is a difference in practice between the position that applies until the end of an inquiry or hearing or the final submission of written representations and the position that applies after that and until a decision is issued. Before the close of the “adversarial” part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw their attention to any relevant decision. But that does not mean that they are never required to make further enquiries about any matter, including about other possible decisions that may be significant. Although the prescribed procedures that apply after the close of the “adversarial” part of the procedure do not necessarily preclude the submission of further relevant information, they are not designed to secure that the participants provide it. In that situation, depending on the circumstances, further steps may reasonably be required to be taken by the Secretary of State or his inspectors.
154. There is no principle that the Secretary of State should be taken to be cognisant of all the decisions taken in his name. There is equally no principle that the Secretary of State is to be taken to be cognisant merely of all his own decisions and no requirement that he should be. Given that one reason why the Secretary of State may “recover” planning appeals in order to determine them himself is to introduce coherence and consistency in development control, however, avoiding apparent and unexplained inconsistencies in the Secretary of State’s own decisions on matters that may have ramifications for decision-making in other cases is an important consideration in determining what may required of him if he is not to act unreasonably”.
On Ground 2, the Judge held that the Secretary of State had made a material mistake of fact as a result of which, “far more significantly”, outline planning permission had been granted without the imposition of a planning condition to secure that no new dwellings could be constructed within the 7km protection zone. The Judge held that to be a breach of regulation 68(3) of the Conservation of Habitats and Species Regulations 2010.
The judgment can be found here.
Heather Sargent appeared for the successful claimants, instructed by DAC Beachcroft LLP.