Land and Development Ltd. v First Secretary of State

On a challenge under Town and Country Planning Act 1990, a decision-maker must take account of a material planning benefit where there is a real possibility that it could affect the outcome. The importance of the consideration depends on the decision’s context. Where the decision-maker’s jurisdiction was recovered because of the conservation significance of an adjoining site, a potential environmental benefit connected with that site required proper factual consideration and weighing. Failure to do so justified quashing and remittal, even though the same planning conclusion might lawfully be reached after reconsideration. A quashed earlier planning decision has no operative effect, but its planning judgment may remain a material consideration in a later inquiry, with the weight and relevance being matters for the decision-maker.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s renewed dismissal of a planning appeal. The proposal concerned housing and office use on a site adjoining Oak Mere, a conservation-sensitive lake. An earlier inspector’s dismissal had been quashed by consent because housing need had not been considered in the context of PPG3. On the reopened inquiry, the Secretary of State accepted the importance and vulnerability of Oak Mere but considered only the drainage consequences of the proposed development, not the potential benefit of diverting existing polluted drainage away from the Mere. The central issue was whether that omission was legally material.

1. Decision quashed and remitted. The Secretary of State’s decision was remitted for reconsideration because he failed to investigate and weigh a potential substantive benefit: the diversion of existing drainage from the site, which might improve Oak Mere’s water quality.
2. The environmental importance and vulnerability of Oak Mere had justified recovery of jurisdiction by the Secretary of State. In that context, the potential benefit of removing an existing source of nutrient enrichment could not be disregarded merely because the development was otherwise being refused. If the benefit could be achieved, it required careful comparison with the development-plan considerations supporting refusal.
3. The principle stated in Bolton Metropolitan Borough Council v Secretary of State [1990] JPL 241 was applied. A failure to consider a matter justifies quashing where it was fundamental to the decision or where there was a real possibility that consideration of it would have made a difference. The court concluded that threshold was met here.
4. The court declined to quash on the remaining grounds. The Secretary of State was entitled to assess housing supply to 2006 on the material before him, although fuller reasons might have been preferable. The employment and sustainability arguments were not made out. A quashed earlier inspector’s decision had no legal effect, but its planning judgment could still be considered as a potentially material matter in identical circumstances. The visual-impact conclusion was not irrational.
5. Costs were assessed at £6,000 plus VAT. Permission to appeal was refused, subject to an extension of time for any renewed application after receipt of the transcript.

The judgment records that an earlier inspector’s dismissal of the planning appeal on 16 November 2000 was quashed by consent on 1 May 2001, following the Secretary of State’s acceptance that housing need had not been considered in the context of PPG3. The present decision concerned the Secretary of State’s renewed dismissal after a reopened inquiry.