South Gloucestershire Council, R (on the application of) v Secretary of State for Communities & Local Government & Anor

A previous planning decision may be a material consideration under section 70(2) of the Town and Country Planning Act 1990. Its materiality depends on whether it is sufficiently similar to the later case, including whether the decision-maker must necessarily agree or disagree with a critical aspect of the earlier decision. Different approaches may be justified where the cases differ in a legally material respect. An express explanation for departing from an earlier decision is required only where the inconsistency is not obvious. Where the earlier decision is distinguishable, the decision-maker need not explain the disagreement expressly. Differences between a large strategic site and a smaller site under PPS3, the availability of relevant guidance, and the practical consequences of the proposed tenure mix were sufficient to distinguish two planning appeals.

The Secretary of State allowed an appeal by Redrow Homes against South Gloucestershire Council’s refusal of planning permission for 152 dwellings at Filton. The Council challenged the decision under section 288 of the Town and Country Planning Act 1990.

The Council relied on an earlier Secretary of State decision concerning the Northfield site, where a 77:23 split between social rented and intermediate affordable housing had been regarded as necessary to meet local need. It argued that the later decision was inconsistent because the same local policy and housing-needs evidence were involved, but gave no explanation for departing from the earlier reasoning. The central issue was whether the two decisions were sufficiently similar to make the earlier decision material and require an explanation for any apparent inconsistency.

1. The claim was dismissed. The Secretary of State’s decision was not unlawful. The earlier Northfield decision was capable of being a material consideration under section 70(2) of the Town and Country Planning Act 1990, but its actual materiality depended on sufficient similarity between the two cases.
2. The relevant approach was drawn principally from North Wiltshire District Council v Secretary of State for the Environment [1992] JPL 955. The practical question was whether deciding the later case in a particular way necessarily involved agreeing or disagreeing with a critical aspect of the earlier decision. Alternative formulations in Baber and R (Rank) v East Cambridgeshire District Council did not affect the result.
3. An express explanation for an apparent inconsistency is required according to the circumstances. If the reason is obvious, no express explanation is necessary. If the inconsistency is stark and fundamental, the decision-maker cannot leave the reader to infer the explanation, as explained in JJ Gallagher Ltd v Secretary of State for Transport, Local Government and the Regions and another [2002] EWHC 1812 (Admin); [2002] 4 PLR 32.
4. The two decisions were plainly distinguishable. Northfield was a large strategic site, whereas the later site was a smaller site for paragraph 24 of PPS3. The former required the housing mix to reflect the proportions of households requiring market and affordable housing; the latter required only regard to those proportions. The distinction was central to the later Inspector’s reasoning and was expressly adopted by the Secretary of State.
5. The later decision also considered the 2007 Strategic Housing Market Assessment practice guidance, which had not been shown to have been considered in the Northfield decision. In addition, the later Inspector found that applying the Council’s preferred tenure and dwelling-type mix would produce fewer affordable dwellings overall and make no material practical difference to the outcome. These differences made the decisions distinguishable, so no formal explanation for departing from Northfield was required.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. No prior appellate decision is stated in the judgment.