Citation: [2024] EWHC 2723
An application for statutory review of planning decision failed because the claimant failed to put the relevant material before the planning inspector when making his decision. There was a strong public interest in the finality of planning appeals and the claimant could not seek to rely on new materials after the decision.
Facts
The claimant applied for statutory review. The impugned action was the first defendant’s decision to allow the second and third defendants’ (residential developers) appeals against the refusal of planning of permission for two residential developments within the metropolitan green belt. The local authority had refused permission because these developments did not amount to the special circumstances required to allow developments within the green belt.
When the developers appealed against this decision, the planning inspector concluded that overall, the harm was clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the developments. He recommended that both appeals be allowed, and planning permission granted. A second review (the Arup review) commissioned by the local authority had been published shortly after the inquiry closed. In his decision letter of March 2024, the Secretary of State agreed with the inspector's recommendations. The letter made no reference to the Arup review.
The claimant contended that the Secretary had unlawfully failed to have regard to a material consideration (the Arup Review). The defendants submitted that the claimant was not entitled to advance a submission based on new material, and alternatively, even if it was, the Secretary was not obliged to take the Arup Review into account because it was not a mandatory material consideration or so obviously material as to require consideration.
Decision
Claimant’s application refused.
The claimant had been aware during the inquiry that the Arup review was to be published shortly. Despite this, it did not rely on the review in the appeal, even though it could have asked the planning inspector to do so. It was incumbent on the parties to a planning appeal to place the relevant materials they hope to rely on before the decision maker. Further, the finality of planning appeals was in the public interest. In any event, the Court also concluded that the Arup Review would not have been a material consideration (even if the claimant had been permitted to rely upon it).
Representation
Piers Riley-Smith for the Claimant (Kings Chambers) instructed by Richard Buxton Solicitors.
Zack Simons (Landmark Chambers) for the First Defendant, instructed by the Government Legal Department.
Lord Banner KC (Keating Chambers) and Matthew Henderson (Landmark Chambers) for the Second Defendant, instructed by CMS Cameron McKenna Nabarro Olswang LLP.
Paul Stinchcombe KC (39 Essex Chambers) for the Third Defendant, instructed by Harold Benjamin Solicitors.
The judgment can be found here.
