Connolly, R (on the application of) v London Borough of Havering

In a challenge under Town and Country Planning Act 1990, section 288, the court may admit fresh evidence in exceptional circumstances where a material planning consideration was wholly omitted from the inspector’s consideration. A recent refusal concerning a materially identical proposal could be material, particularly where the local planning authority had undertaken to provide the relevant planning history. An inspector’s independent planning judgment does not cure a failure to consider a material consideration. The decision is unlawful where the omitted matter might have affected the outcome, even though the court cannot conclude that the decision would necessarily have been different.

Mr and Mrs Connolly challenged a Planning Inspector’s decision under section 288 of the Town and Country Planning Act 1990. The Inspector had allowed part of an appeal concerning alterations to a neighbouring property, including a room over a garage and carport, but dismissed the appeal concerning a covered storage area.

The Inspector understood the council to have raised no objection to the garage-side works. The council had not disclosed a recent refusal of planning permission for a materially identical garage extension, although it had undertaken to provide the relevant planning history. The central issues were whether the court could receive that fresh evidence and whether the omission was material to the Inspector’s planning judgment.

1. The fresh evidence was admitted. Although evidence not before the Inspector is ordinarily excluded in a section 288 challenge, exceptional evidence may be received where it demonstrates that a matter of real importance was wholly omitted from the Inspector’s consideration. The authorities concerning new evidence did not prevent admission in this case.

2. The recent refusal was a relevant and potentially significant planning consideration. The council was not merely a party to the appeal. It was expected to draw relevant planning considerations to the Inspector’s attention. Its failure to disclose the refusal meant that the Inspector approached the garage-side proposal on the mistaken understanding that the council raised no objection.

3. The court recognised that planning judgment belongs to the local planning authority or the Secretary of State. That principle did not permit the Inspector’s decision to stand where a material consideration had not been taken into account. The Inspector’s independent assessment of the site and proposal did not answer the omission.

4. The court could not conclude that the Inspector would have reached a different decision had she known of the earlier refusal. It could, however, conclude that the decision might have been different. That possibility was sufficient to vitiate the decision.

5. The Inspector’s decision was quashed and the matter remitted to the Secretary of State for further consideration. Costs were awarded against the defendants in an apportioned manner, subject to the order concerning the London Borough of Havering. Permission to appeal was granted without restriction to a particular ground.

This was a first-instance application in the Administrative Court. The court granted permission to appeal, without confining the grounds.