Connolly & Ors v Secretary of State for Communities and Local Government

A planning decision may be quashed where a mistake about an existing, objectively verifiable fact causes procedural unfairness. The affected party must not be responsible for the mistake, and the mistake must have played a material, though not necessarily decisive, part in the decision-maker’s reasoning. Fault is unnecessary.

A local planning authority and an inspector share a public interest in ensuring that development control proceeds on the correct factual basis. An authority’s failure to supply material planning history may therefore render an inspector’s decision unfair, without imposing any general investigatory duty on inspectors.

A new issue should not ordinarily be raised on appeal unless it is a pure question of law arising from facts fully examined and uncontested below.

A planning inspector allowed an appeal under section 78 of the Town and Country Planning Act 1990 and granted permission for part of a residential extension. The local planning authority had failed to provide the inspector with its intervening refusal of a substantially similar proposal. The neighbouring householders successfully challenged the inspector’s decision under section 288.

Pitchford J quashed the decision in [2008] EWHC 2873 (Admin) and remitted the matter to the Secretary of State. The Secretary of State appealed, contending principally that the inspector could not be criticised for failing to consider material which had not been placed before her. At the hearing, a further argument based on new documents sought to show that the two proposals were not materially identical.

The central questions were whether the missing planning history caused legally material unfairness and whether the new argument could properly be entertained on appeal.

1. Appeal dismissed unanimously. The inspector’s decision was properly quashed because it was affected by procedural unfairness arising from a mistake of fact.

2. The ordinary requirements for this ground of review were satisfied. There was a mistake about the site’s planning history because the inspector did not know of the authority’s refusal of a materially identical northern-flank proposal. The missing evidence was established, uncontentious and objectively verifiable. The neighbouring objectors were not responsible for its omission. The mistake materially affected the inspector’s reasoning because she proceeded on the false impression that she had the relevant history and relied closely on the authority’s earlier favourable assessment.

3. Fault was unnecessary. Under the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000, the authority was responsible for co-operating in placing the material planning history before the inspector. The authority and inspector shared a public interest in development control being conducted on the correct factual basis. This conclusion imposed no general investigatory duty upon inspectors.

4. The materiality requirement did not demand proof that the omitted history would have changed the result. It was enough that the information could have had a material impact. The objectors met that burden because the authority had rejected a substantially similar proposal after receiving their objections, while the inspector believed that the authority raised no objection to the relevant works.

5. The new argument was rejected. It contradicted the unchallenged finding and common understanding below that the proposals were materially identical. It also depended upon late documentary material, assertions unsupported by evidence and an unpleaded ground of appeal. A new issue may ordinarily be raised on appeal only where all potentially relevant factual material was examined below and the issue is a pure question of law on uncontested facts. The Secretary of State had not attempted to satisfy the tests governing fresh evidence in Ladd v Marshall [1954] 1 WLR 1489, or any broader interests-of-justice discretion.

6. The order quashing the inspector’s decision and remitting the planning matter to the Secretary of State therefore remained in force.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously. The order quashing the inspector’s decision and remitting the matter remained in force: [2009] EWCA Civ 1059.

2. High Court, Administrative Court: Pitchford J allowed the householders’ application under section 288 of the Town and Country Planning Act 1990, quashed the inspector’s decision and remitted the matter to the Secretary of State: [2008] EWHC 2873 (Admin).

3. Planning inspector: The inspector allowed the section 78 appeal in part and granted permission for the northern-flank elements of the proposed residential extension.