JS Bloor (Sudbury) Ltd. v First Secretary of State

A previous planning appeal decision is capable of being a material consideration, particularly where it concerns the same site, substantially similar development and the same planning policy background. An inspector may reach a different conclusion, but must give clear and sufficient reasons for departing from the earlier decision. A mere reference to the earlier decision, or an explanation that a different issue was previously treated as the main issue, is insufficient where the earlier decision resolved closely related matters. Prematurity will rarely justify refusal of a small-scale proposal unless the development would prejudice the outcome of the plan-making process. Material defects in reasoning justify quashing where substantial prejudice is established.

The claimant challenged under Town and Country Planning Act 1990, section 288, an inspector’s decision dismissing its appeal under section 78 against refusal of outline planning permission for five houses at Shimpling Street, Suffolk.

A previous inspector had dismissed an appeal concerning substantially similar development on the same site, but had accepted in principle the development of five dwellings and the suitability of the low-density scheme. The later inspector rejected the proposal on density and questioned the principle of development, relying on emerging policy, national guidance and prematurity. The central issues were whether he had properly treated the earlier decision as a material consideration, whether his reasons for departing from it were adequate, and whether prematurity was a lawful ground for refusal.

1. The claim succeeded. The inspector’s decision was quashed and the matter was remitted for hearing before another inspector. Costs were ordered in the agreed sum of £8,802.20.
2. A previous appeal decision is capable of being a material consideration because consistency is important in the planning system. Under North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P & CR 137, an inspector may disagree with an earlier decision, but must have regard to consistency and give reasons for departing from it.
3. The earlier and later appeals concerned the same site, substantially similar applications and precisely the same planning policy background. The earlier inspector had consciously accepted both the principle of five dwellings and the appropriateness of the low-density concept. The later inspector’s decision was therefore wholly inconsistent with the earlier decision on both matters. His reference to the earlier decision, and his statement that density had not been the main issue previously, did not explain why he rejected the earlier inspector’s reasoning or why the local authority had changed its position. The reasons were inadequate.
4. The later inspector also treated the principle of development as requiring reassessment through the local plan process. Properly understood, this amounted at least in part to a finding of prematurity. Under PPG1, prematurity will rarely justify refusing a proposal affecting only a small area. The scale of this proposal did not support such a finding. Even if the wording were regarded as ambiguous, it created prejudice and did not adequately explain the departure from the earlier decision.
5. The reference to Structure Plan Policy CS3 as relevant to density was erroneous, although the other policies and guidance identified could in principle support the density conclusion. The statement that the claimant had not contested the significance of a 5 or 6 per cent population increase was also erroneous or materially misleading. Neither point alone required quashing, but each added to the substantial defects in the reasoning.
6. The court rejected the submission that the errors could not have affected the outcome. The claimant could not be confident that the result would have been the same had the earlier decision been properly analysed and prematurity not been relied upon.

The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to the first defendant inspector’s decision dated 20 February 2003, dismissing the claimant’s planning appeal under section 78. The decision was quashed and remitted to another inspector.