De Mulder & Anor v First Secretary of State & Anor

In a called-in planning application, the Secretary of State may differ from an inspector on matters of planning judgment without first notifying the parties under rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The notification duty arises where the Secretary of State differs on a material matter of fact or relies on new evidence or a new matter of fact.

Whether a proposal affects Green Belt openness may involve evaluative planning judgment rather than a notification-triggering finding of fact. The Secretary of State need not visit the site if he has sufficient material to make a reasonable judgment. The court must not substitute its own planning judgment, provided the decision remains within the bounds of rationality and takes account of material considerations.

The claimants challenged, under section 288 of the Town and Country Planning Act 1990, the Secretary of State’s refusal of called-in planning permission for four dwellings on a scrapyard site in the Green Belt. The Secretary of State disagreed with the inspector’s recommendation.

The challenge concerned whether the Secretary of State was entitled to reach a different view about Green Belt openness without notifying the parties, whether he needed to visit the site or obtain volumetric evidence, and whether he was entitled to conclude that very special circumstances did not outweigh the harm caused by inappropriate development and conflict with housing and sustainability policies.

1. The claim was dismissed. The Secretary of State’s decision was not legally flawed.
2. Under rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, notification is required where the Secretary of State differs from the inspector on a material matter of fact, or relies on new evidence or a new matter of fact and for that reason proposes to disagree with the recommendation. The rule does not require notification where the difference concerns planning merits or judgment.
3. The assessment of Green Belt openness was a judgment of the kind considered in Portsmouth Water PLC v Secretary of State for the Environment [1993] 3 PLR 1. The Secretary of State could consider the relative permanence and height of the proposed buildings and the potential stacking of vehicles without notifying the parties. No precise volumetric comparison was required.
4. A site visit was not a precondition to differing from the inspector on visual matters. The relevant question was whether the Secretary of State had sufficient material to make a reasonable judgment. The inspector had an advantage in assessing visual amenity, but not a significant advantage on the issue of openness.
5. The Secretary of State was entitled to weigh the proposal’s benefits against its effect on Green Belt openness, housing policy and sustainability. Under the approach stated in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, the weight given to material considerations was a matter of planning judgment, subject only to the ordinary limits of rationality. The court could not substitute its own view.