Arun District Council v Secretary of State for Communities And Local Government

A planning appeal remitted after the original inspector’s decision has been quashed must be determined afresh. The second inspector is not required to treat findings in the quashed decision as material considerations or to explain departures from them, unless the parties have agreed that particular matters remain common ground. The consistency principle concerning earlier planning decisions applies where the earlier decision continues to stand, but not where it has been quashed in its entirety. An emerging statutory power to revoke a regional strategy is a material consideration, but limited weight may be given to it where revocation remains subject to environmental assessment, parliamentary consideration and the exercise of a discretionary power. Reasons are adequate where they make the relevant uncertainty and its effect intelligible.

A planning application for 39 dwellings at Jenkins Yard, Ferring, had been refused by Arun District Council. An initial appeal was dismissed, but that decision was quashed in its entirety because the inspector had failed to take account of the South Eastern Plan, which was part of the statutory development plan. On remittal, a second inspector reconsidered the appeal afresh and granted planning permission.

The Council brought a section 288 appeal. It argued that the second inspector had erred by failing to refer to the first inspector’s findings on the strategic gap and by giving inadequate reasons for attaching limited weight to the Localism Act 2011 and its power to revoke regional strategies.

1. Quashed decision. The appeal was dismissed. A decision quashed in its entirety is of no legal effect. The remitted appeal was therefore a redetermination, not a review, and the second inspector was entitled to consider the matter afresh on the evidence and policy context existing when she decided it.
2. The first inspector’s findings did not become material considerations merely because they concerned issues central to the remitted appeal. There had been no agreement that any part of the quashed decision should stand. Requiring a new inspector first to determine which findings from a quashed decision might survive would create confusion and complexity.
3. The consistency principle derived from North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137 concerns a previous decision which remains extant. It did not require reasons for departing from the first inspector’s conclusions because that decision had been quashed in its entirety. The observations in Land and Development Ltd v First Secretary of State [2003] EWHC 2200 (Admin) were obiter and provided no persuasive assistance on the present issue.
4. The Localism Act 2011 was a material consideration because section 109(3) and (4) gave the Secretary of State power to revoke regional strategies. However, revocation remained subject to strategic environmental assessment, consideration of representations and the exercise of a discretionary power. The inspector was entitled to attach limited weight to the prospective change. Her explanation that decisions would await the environmental assessment and consideration by the Secretary of State and Parliament was adequate, applying the demanding reasons standard in South Buckinghamshire County Council v Porter (No 2) [2004] UKHL 33 and [2004] 1 WLR 1953.
5. The appeal was dismissed. The Secretary of State’s costs were summarily assessed at £6,974. The interested party’s application for costs was refused.