Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government & Anor

Planning decisions concerning materially similar proposals should adopt a coherent and consistent approach. A decision-maker may depart from an earlier decision, but must identify the disagreement and give reasons for it. Treating the earlier decision as having no weight does not discharge that obligation.

National planning policy requiring favourable consideration of housing applications where there is no five-year housing land supply does not prevent consideration of other relevant development-plan policies and material considerations. Prematurity policy permits refusal where the scale or cumulative effect of development could prejudice an emerging development plan. Best and most versatile agricultural land must be assessed under the policy’s actual test, not by applying a stricter requirement to avoid its loss unless absolutely unavoidable.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of its recovered appeal against refusal of outline permission for up to 280 dwellings and associated works at Sandbach.

A closely comparable appeal by Richborough Estates concerning another greenfield site at Sandbach had been dismissed in an earlier decision letter. That decision was under challenge but remained legally effective when the claimant’s appeal was determined. The central issues were whether the Secretary of State had given adequate reasons for adopting inconsistent approaches, whether his treatment of prematurity and housing-land policy was lawful, and whether he had correctly applied policy concerning best and most versatile agricultural land.

1. The claim was allowed. The Secretary of State’s decision letter dated 29 September 2011 was quashed. The First Defendant was ordered to pay the claimant’s agreed costs of £22,000.

2. Where two materially similar planning appeals raise substantially similar issues, consistency is an important consideration. The decision-maker remains entitled to exercise independent planning judgment, but must give reasons for departing from relevant conclusions in the earlier decision. An earlier decision cannot simply be treated as carrying no weight to avoid that duty. The Richborough decision remained legally valid unless and until quashed, and the grounds of its challenge did not affect the inconsistent matters. The failure to confront the differences was a major error of law.

3. The Secretary of State was entitled to conclude that permission for a substantial greenfield development could pre-empt decisions in the emerging local development framework and encourage further applications. Read together, paragraph 72 of PPS3 and paragraphs 17 and 18 of The Planning System: General Principles did not prohibit refusal where the proposal’s scale or cumulative effect could prejudice decisions about the scale, location or phasing of development. The reasoning did not amount to an unlawful departure from policy.

4. Paragraph 71 of PPS3 required favourable consideration of housing applications where there was no five-year supply, having regard to paragraph 69. It did not confine the decision-maker to housing policies within PPS3. Relevant development-plan policies and other material considerations could be weighed, including settlement boundaries, countryside protection, agricultural land and the emerging spatial strategy. The Secretary of State’s short summary of the policy was poorly phrased, but his substantive assessment applied the correct test.

5. The Secretary of State was entitled to treat Crewe as preferred to Sandbach under the RSS policy hierarchy, although the RSS did not expressly direct development away from Sandbach. He was also entitled, on the evidence, to regard delay to previously developed sites as a planning risk, even though the evidence did not establish that delay would probably occur.

6. The Secretary of State misstated and failed to apply PPS7 paragraph 28. The proper question was whether taking agricultural land was required and, if so, whether available land of poorer quality could be used in preference to best and most versatile land. His different test lay outside the range of reasonable interpretations of the policy. This ground independently established an error, although it would not alone have justified quashing given the other lawful reasons for refusal.

7. Permission to appeal was refused. The principle of consistency applied although the Richborough decision was under challenge, and its materiality could not depend merely on that challenge.

This was a first-instance judicial review under section 288 of the Town and Country Planning Act 1990. The challenged decision was the Secretary of State’s decision letter of 29 September 2011 dismissing the claimant’s recovered planning appeal. Permission to appeal was refused.