Wiltshire Council v Secretary of State for Communities and Local Government & Ors

A planning decision-maker must consider a potentially material change occurring before the decision is issued. A matter is material if it is relevant and carries some weight, such that there is a real possibility that considering it would affect the decision. The court decides materiality; the weight remains for the decision-maker. Where relevant new material is notified, administrative officers must ensure that the inspector has an opportunity to assess it before issuing the decision. A failure to do so may invalidate the decision. Relief will nevertheless be refused where the court cannot identify a real possibility that consideration of the material would have affected the outcome.

Two judicial review claims challenged planning appeal decisions concerning land at Hilperton. In Appeal A, an inspector granted permission for fifteen dwellings. In Appeal B, an inspector permitted an annex to be used as independent living accommodation.

After the appeals had been heard, the examining inspector’s final report on the emerging Wiltshire Core Strategy was issued. The report accepted a housing requirement of at least 42,000 dwellings and concluded that the Council could demonstrate a five-year housing land supply against that figure. The Council sent the report to the Planning Inspectorate, but it was not considered by the inspector in Appeal A and was not effectively considered in Appeal B.

The central issues were whether the report was a material consideration and, if so, whether the omission caused sufficient prejudice to justify quashing either decision.

1. Appeal A succeeded. The decision granting planning permission was quashed. The emerging Core Strategy report was a material consideration because housing need and supply were main issues in the appeal. Its acceptance of a 42,000 housing requirement altered the housing requirement landscape, cast doubt on the Council’s concession that it lacked a five-year supply, and advanced the Core Strategy towards adoption. There was therefore a real possibility that consideration of the report would have affected the inspector’s planning judgment.

2. The duty to consider material considerations continued until the appeal decision was issued, even though the inspector might have sent the decision letter to the Planning Inspectorate earlier. The inspector remained seized of the appeal until notification of the decision: see rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000.

3. The court applied the principles in Bolton Metropolitan Borough Council v Secretary of State for the Environment [1990] 61 P&CR 343 and R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370. Materiality is a question of law. Weight is for the planning decision-maker. A matter need not be determinative: it is sufficient that it might realistically have made some difference.

4. The court followed the approach in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin). It was not enough for the Planning Inspectorate to leave the notification unanswered. The inspector had to be given the opportunity to decide whether the new material was material and, if so, what weight it should receive. The failure caused substantial prejudice because permission had been granted contrary to development plan policy on a basis that might have been affected by the report.

5. Appeal B failed. Although the report was a material consideration, the housing position was subsidiary to the site-specific issues of sustainability, highway safety and living conditions. It was impossible to conclude that considering the report would have made a difference to the outcome. The court therefore declined to quash the decision under the principle stated in Bolton and left the decision standing.

6. The court could not exercise its discretion to withhold relief in Appeal A because it could not say that the decision would inevitably have been the same: see Simplex GE (Holdings) v Secretary of State for the Environment and the City and District of St Albans District Council [1989] 57 P & CR 306.

Not an appeal from a judicial decision. The claims challenged two planning appeal decisions issued by inspectors appointed by the Secretary of State.