Butterworth v Secretary of State for Communities and Local Goverment & Anor

Previous planning appeal decisions may be material considerations because consistency supports fairness and public confidence. An inspector remains entitled to exercise independent planning judgment, but must identify whether the earlier case is materially distinguishable or whether she is disagreeing with it on a critical issue. Where an apparent inconsistency is central to the parties’ case, the inspector must give an express and intelligible explanation directed to that inconsistency. A general statement that each case is decided on its own merits, or reliance on unchanged planning policies, will not ordinarily suffice. The explanation need not be elaborate, but it must show that the earlier decision was properly considered and that the reason for departing from it has been resolved.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of his section 78 appeal. The appeal concerned planning permission for a roof extension to a flat at 10 St Stephen’s Gardens, London.

Two earlier inspector decisions concerned similar roof extensions in the same street. Permission had been refused for 26 St Stephen’s Gardens but granted for 4 St Stephen’s Gardens. The claimant argued that the inspector had failed either to have proper regard to those decisions or to explain adequately why she reached a different conclusion. The central issue was whether the inspector had dealt lawfully with the apparent inconsistency.

1. The claim succeeded. The inspector’s decision was quashed and the appeal was remitted to the Secretary of State for redetermination.
2. A previous appeal decision can be a material planning consideration. The governing principles were stated in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P. & C.R. 137. An inspector must exercise independent judgment, but must have regard to consistency and give reasons for departing from a previous decision where the cases are materially alike.
3. The practical question is whether deciding the present case in a particular way necessarily involves agreeing or disagreeing with a critical aspect of the earlier decision. Where there is an apparent inconsistency, the inspector must either explain why the consistency principle does not apply, identify a material distinction, or explain why she is departing from the earlier approach. The reasoning in Dunster Properties Ltd. v First Secretary of State [2007] EWCA Civ 236, R. (on the application of Fox Strategic Land and Property Ltd.) v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198 and J.J. Gallagher Ltd. v Secretary of State for Local Government, Transport and the Regions [2002] EWHC 1812 (Admin) supported that approach.
4. Here the earlier decisions were prominent in the representations and concerned similar proposals in the same terrace under effectively the same policy framework. The inspector acknowledged matters such as visibility and previous roof alterations, but did not say whether she accepted the earlier inspectors’ approach, whether the present case was materially different, or why she disagreed with them. Reliance on long-standing policies did not explain the departure, particularly when no material policy change had been identified.
5. The reasons were therefore unintelligible and inadequate. The claimant suffered substantial prejudice because he could not determine whether the decision was taken within the statutory powers or reasonably assess the prospects of an alternative proposal. The inspector was not required to reach the same result as the earlier inspectors, but was required to provide an express and unambiguous explanation.

The inspector dismissed the claimant’s section 78 planning appeal on 23 April 2014 after the local planning authority refused permission. The High Court, exercising jurisdiction under section 288 of the Town and Country Planning Act 1990, quashed the inspector’s decision and remitted the appeal for redetermination.