Oxford Diocesan Board of Finance v Secretary of State for Communities and Local Government & Anor

In a statutory planning challenge, the decision-maker must take into account all material considerations. A material consideration cannot be disregarded merely because it is a ministerial statement or because the decision-maker may ultimately attach little or no weight to it. The court reviews legality, not the planning merits. The weight given to planning policies, emerging policies, infrastructure documents and other material considerations is ordinarily a matter of planning judgment. A pending challenge to a planning document does not necessarily prevent reliance on it while it remains legally effective. Reasons are assessed fairly and as a whole, without excessive legalism, and need address the principal controversial issues rather than every argument.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision dated 26 May 2011 dismissing its appeal against Wokingham Borough Council’s refusal of permission for residential development at Shinfield Glebe.

The challenge alleged failure to consider a ministerial statement on planning for growth, unlawful reliance on emerging and adopted supplementary planning documents, error concerning infrastructure contributions, errors in assessing bus services and landscape impact, and inadequate reasons.

1. Ground 1 succeeded. The Secretary of State’s decision letter carefully referred to the relevant planning policies and legislative provisions but omitted the Ministerial Statement “Planning for Growth”. On the balance of probabilities, it had been overlooked.
2. The Statement was a material consideration. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker had to have regard to all material considerations before deciding what weight, if any, to give them. The Statement’s relatively low position in the hierarchy of planning material did not make it trivial. The court could not exclude the possibility that it might have affected the decision.
3. The Secretary of State was not entitled to avoid considering the Statement on the basis that the development had been found unsustainable. He first had to consider it and could then conclude that it had no bearing on the particular application.
4. Grounds 2 to 6 failed. The adopted Infrastructure SPD remained legally effective because it had not been quashed and was a material consideration. The weight given to it was a matter of planning judgment. The draft SM4 SPD was emerging policy directly relevant to the site, and limited weight could lawfully be given to it because it might change and was subject to a legal challenge.
5. Compliance of the proposed section 106 obligation with the CIL Regulations did not determine the separate planning question whether the proposal created a risk of insufficient infrastructure provision. That assessment, including the risk of shortfall affecting the wider strategic development location, was a planning judgment.
6. The Inspector’s conclusions on bus services, sustainable transport, landscape and settlement separation were supported by evidence and involved planning judgment. The reference to being “sure” did not show that a criminal standard of proof had been applied. The Parish Council’s contrary views had been taken into account.
7. The decision letter and Inspector’s report gave intelligible and adequate reasons when read fairly, in good faith and as a whole. The Secretary of State’s decision was nevertheless quashed for failure to consider the Ministerial Statement and remitted for reconsideration.

This was a first-instance statutory planning challenge. The Secretary of State had dismissed the claimant’s planning appeal against Wokingham Borough Council’s refusal of permission.