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

On a statutory challenge to a planning decision, the court must not substitute its own planning judgment for that of the decision-maker. It must examine whether the correct legal issues were considered, relevant factors taken into account, irrelevant factors excluded, and the process conducted fairly. Where those requirements are met, the decision is unlawful only if it falls outside the range of decisions open to a rational decision-maker properly directing itself. Saved planning policies may preserve a Green Belt indirectly where they refer to the Green Belt and the proposals map forms part of the policy framework. A Secretary of State may disagree with an inspector on factual assessments only where there is an evidential basis for doing so.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision refusing planning permission for 165 dwellings on agricultural land at Thundersley, Essex. The inspector had recommended permission, concluding that very special circumstances existed despite the site’s Green Belt location.

The Secretary of State rejected that recommendation, finding substantial cumulative harm to the Green Belt which was not clearly outweighed by the housing benefits. The claimant challenged the decision on four grounds: the alleged lapse of the Green Belt policy; procedural unfairness arising from post-inquiry representations; insufficient evidence for factual disagreements with the inspector; and reliance on irrelevant or irrational considerations.

1. The application was dismissed. The saved policies concerning alterations, rebuilding and reuse of buildings referred to the Green Belt. The proposals map could therefore attach to those policies and form part of them under sections 36(6) and 54(1)(c) of the Town and Country Planning Act 1990. The lapse of policy GB1 did not remove the Green Belt policy framework.
2. Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 required further representations only if the Secretary of State was disposed to disagree with the inspector for that reason. Reading the decision letter as a whole, the Member of Parliament’s representations were not the reason for the disagreement. There was consequently no procedural unfairness.
3. The Secretary of State could not substitute factual conclusions for those of the inspector without a proper evidential basis. That principle, explained in Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049, was satisfied. The Secretary of State had evidential material supporting his conclusions on urban sprawl, countryside encroachment and landscape character. Those conclusions were matters of planning judgment and were not irrational.
4. The reference to the risk of an undesirable precedent did not introduce an irrelevant consideration. It reflected the importance of Green Belt protection and the cumulative harm identified in the decision. Nor had the Secretary of State treated a revised local plan as a legal precondition to a Green Belt exception. He had assessed the competing harm and benefits and assigned weight to preserving the Green Belt from piecemeal development.
5. The court’s role was supervisory. It scrutinised whether the correct issues had been addressed, relevant considerations included, irrelevant considerations excluded and fairness observed. The final decision could be challenged only if it fell outside the range of decisions open to a rational decision-maker properly and fairly directing itself. That threshold was not met. The Secretary of State’s decision was sufficiently reasoned and lawful.

The proceedings were a statutory challenge under section 288 of the Town and Country Planning Act 1990 to the Secretary of State’s decision of 26 June 2013. The inspector had recommended that planning permission be granted, but the Secretary of State rejected that recommendation. The Administrative Court dismissed the challenge.