Fox Strategic Land and Property Ltd, R (On the Application Of) v Secretary of State for Communities and Local Government

A planning decision-maker must consider a previous appeal decision where the cases are materially alike. Consistency promotes fairness and public confidence, although it does not require identical outcomes.

If the decision-maker disagrees with a critical aspect of the earlier decision, the earlier decision must be weighed and reasons given for departing from it. A pending legal challenge does not, by itself, justify ignoring the earlier decision. The decision-maker must analyse the challenge and its relationship to the potentially inconsistent issue.

An isolated overstatement of planning policy will not justify quashing a decision where the policy is correctly stated and applied elsewhere and the overstatement was not material to the result.

The Secretary of State appealed against HHJ Gilbart QC's order of 2 March 2012 quashing his refusal of planning permission for up to 280 dwellings on agricultural land at Sandbach. The judge found that the Secretary of State had unlawfully attributed no weight to an earlier decision concerning a nearby development at Richborough, despite a material inconsistency between the decisions.

The Richborough decision had been challenged in the High Court and was later quashed by consent. The challenge, however, concerned housing land supply rather than the favourable conclusion reached in Richborough about the spatial vision for Sandbach.

The appeal also concerned whether the Secretary of State had misinterpreted planning policy protecting best and most versatile agricultural land. The central issue was whether the pending challenge entitled him to disregard the implications of the Richborough decision without analysing or explaining the inconsistency.

1. Appeal dismissed. The Secretary of State acted unlawfully by ignoring the implications of the Richborough decision. The High Court had therefore correctly quashed his refusal of planning permission.

2. Previous planning appeal decisions are capable of being material considerations because materially alike cases should ordinarily be approached consistently. Consistency does not compel the same outcome, since each decision-maker must exercise an independent planning judgment. Where a decision-maker disagrees with a critical aspect of an indistinguishable earlier decision, however, the earlier decision must be weighed and reasons must be given for departing from it. The court applied North Wiltshire DC v Secretary of State for the Environment [1992] 65 P&CR 137.

3. The two decisions adopted seriously inconsistent approaches to the spatial vision for Sandbach. Richborough accepted that development in Sandbach accorded with the relevant spatial objectives. The Fox decision treated the absence of a clear and durable spatial vision as a consideration against development. The inconsistency concerned an issue central to the Fox decision.

4. The pending High Court challenge to Richborough did not justify attributing no weight to that decision. The challenge concerned housing land supply, not spatial vision. The Secretary of State needed to analyse the relevance of Richborough, consider the implications of its favourable spatial findings and, if departing from them, explain why. Merely referring to the existence of the challenge neither addressed nor justified the inconsistency.

5. Pill LJ considered that the expression “absolutely unavoidable”, used when describing the protection of best and most versatile agricultural land, overstated the policy in PPS7. Read as a whole, however, the decision letter correctly treated the quality of the land as a material consideration weighing against development. The overstatement was not crucial and would not independently have justified quashing the decision. Rimer LJ and Black LJ shared misgivings about the lower court's reasoning on this issue and did not express a concluded view, since it could not determine the appeal.

6. The grounds in the respondent's notice were not pursued. Rimer LJ and Black LJ agreed that the appeal should be dismissed on the inconsistency ground.

1. Court of Appeal (Civil Division): The Secretary of State's appeal was dismissed. The court upheld the conclusion that the refusal of planning permission was unlawful because the Secretary of State had failed to address a material inconsistency with the Richborough decision. [2012] EWCA Civ 1198

2. High Court, Queen's Bench Division, Administrative Court: On 2 March 2012 HHJ Gilbart QC, sitting as a deputy High Court judge, quashed the Secretary of State's refusal of planning permission. No neutral citation is stated in the judgment.