Wokingham Borough Council v Oxford Diocesan Board of Finance

Failure to take account of a material planning policy document does not automatically justify quashing a decision. The court must ask whether any principle in the omitted document might rationally have led the decision-maker to reach a different conclusion. That requires a second-stage assessment of the document’s possible effect, after recognising that it was a material consideration. Where the omitted policy merely restates existing policy already applied, and the decision-maker’s findings point against the development, there may be no rational basis for concluding that the omission could have made a difference.

The Secretary of State dismissed an appeal against refusal of outline planning permission for residential development of up to 175 dwellings and associated facilities at Shinfield Glebe, Berkshire. Lang J quashed the decision on the ground that the Secretary of State had failed to consider the ministerial statement Planning for Growth, issued after the inquiry but before the decision letter. Five other grounds of challenge were rejected. The judgment is cited as [2013] EWHC 802 (Admin).

The Council appealed. The respondent did not resist the appeal. The central issue was whether failure to consider the statement required the Secretary of State’s decision to be quashed, despite the statement largely restating existing policy and the finding that the proposed development was not sustainable.

1. Appeal allowed. The order of Lang J quashing the Secretary of State’s decision was set aside. The respondent did not resist the appeal.
2. The fact that a policy document was a material consideration which the decision-maker should have taken into account is only the first stage of the analysis. The court must then identify which, if any, of the document’s principles might rationally have persuaded the decision-maker to reach a different conclusion. The omission justifies quashing only where there is a rational basis for concluding that the document might have affected the result (para [8]).
3. That second-stage inquiry was particularly important because the principles in Planning for Growth were largely, if not entirely, a restatement of principles in existing policy documents that had been applied by the inspector and accepted by the Secretary of State. The statement’s presumption in favour of sustainable development therefore could not assist the respondent where the inspector had found that the proposal was not sustainable because it failed to make adequate provision for sustainable travel modes, especially public transport (paras [5]–[7]).
4. The judge had rejected the challenge to the inspector’s reasoning on sustainability. On the accepted findings, the omitted statement was either not engaged or would have reinforced, rather than altered, the decision to dismiss the appeal. There was no rational basis for concluding that consideration of the statement might have produced a different outcome (paras [6]–[8]).

• Court of Appeal (Civil Division): Appeal allowed against Lang J’s order dated 11 April 2013.
• High Court, Queen’s Bench Division: Lang J rejected five grounds of challenge but allowed the challenge on the ground that the Secretary of State had failed to consider Planning for Growth, and quashed the decision. The judgment is cited as [2013] EWHC 802 (Admin).
• Secretary of State’s decision: Appeal against refusal of outline planning permission dismissed on 26 May 2011.