Ball v Secretary of State for Communities And Local Government

In a planning challenge under section 288, the court reviews legality rather than the merits or weight assigned to material considerations. A decision maker may disagree with an inspector or advisers, provided the decision identifies the relevant considerations, applies the correct legal test and gives a rational explanation. In Green Belt cases, inappropriate development may be permitted only where material considerations clearly outweigh the harm caused by inappropriateness and any other harm. The circumstances need not themselves be unusual; what must be very special is their clearly outweighing effect. A decision letter is read fairly and as a whole. Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimant challenged, under section 288 of the Town & Country Planning Act 1980, the Secretary of State’s refusal of planning permission for six gypsy and traveller pitches at Plot 3, Oak Tree Farm, in the Green Belt. An inspector had recommended allowing the appeal, but the Secretary of State recovered it and refused permission by letter dated 3 October 2011.

The challenge alleged apparent bias, failure to consider relevant matters, irrationality, inconsistency with other recovered appeals, and inadequate reasons. The Secretary of State was the constituency MP and had opposed the development before the election, but the evidence showed that he took no part in the decision. The central issues were whether the decision unlawfully failed to apply relevant planning policy, whether the balancing exercise was irrational or inadequately explained, and whether the process gave rise to apparent bias.

1. The appeal was dismissed. The Secretary of State’s decision was not unlawful on any ground advanced.
2. The court’s role was confined to reviewing legality. Whether something was a material consideration was a question of law, but the weight assigned to it was a matter of planning judgment for the decision maker, subject to rationality. The Secretary of State was not required to follow the inspector or his advisers.
3. The East of England Plan, including policy H3, remained part of the development plan following the successful challenge to the purported revocation of the Regional Spatial Strategy in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 2866 (Admin). The Decision Letter expressly recognised and applied the policy. The submission that it had been ignored therefore failed.
4. The proposal was inappropriate development in the Green Belt. The issue was whether material considerations clearly outweighed the harm. The Secretary of State was entitled to attach substantial weight to Green Belt harm, find the harm severe, and give different weights from those adopted by the inspector or advisers. Accommodation need, personal need, lack of alternative sites, policy failure and access to services were considered, but did not clearly outweigh the harm.
5. The Decision Letter, read fairly and as a whole, identified the principal factors on both sides, explained the relevant differences in weight, and stated the result of the balancing exercise. It gave adequate reasons.
6. Apparent bias was assessed by the test in Porter v McGill [2002] 2 AC 357, applied through the two-stage approach in Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117. The constituency representations did not establish actual or apparent bias because the Secretary of State took no part in the decision and did not influence it. The late disclosure of briefing advice breached the duty of candour in the circumstances, but did not indicate a biased or closed-minded process.